RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 August 2006
      DOCKET NUMBER:  AR20060005538


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his reason for transfer to the Retired
Reserve be changed from “non-participation” to “voluntary.”

2.  The applicant states he was voluntarily transferred from a Troop
Program Unit (TPU) to the Individual Ready Reserve (IRR) in November 2001.
He discussed the transfer with his Brigade Command Sergeant Major and
others, and he was told that he did not have to earn any points to stay in
the IRR but would still receive the cost of living allowance raises and
membership points.  In November 2002, he was telephonically informed that,
since he had more than 20 qualifying years of service, he had to earn 50
points per year to remain in the IRR.  He was offered a waiver of the non-
qualifying year if he wanted to remain in the IRR.  If not, he could either
elect to voluntarily transfer to the Retired Reserve and be eligible for
return to service at a later date, or be involuntarily transferred for non-
participation and never be able to return.

3.  The applicant states that he told the person who called that he would
voluntarily transfer to the Retired Reserve so he could return at a later
date.  He signed a request for voluntary transfer a short time later.
However, when he received the orders he noticed that the reason for the
transfer was listed as   non-participation.  He assumed that was standard
procedure and that his records would show that the transfer was voluntary.
That is why he did not request a correction at the time.

4.  The applicant provides two memorandums of support, dated 15 and 28
March 2006; a letter to his Representative in Congress, dated 14 June 2006;
a letter from his Representative in Congress, dated 10 April 2006;
reassignment orders dated 22 February 2002; reassignment orders dated 5
November 2001; and a    5 January 2006 letter from the U. S. Army Human
Resources Command – St. Louis (USAHRC – STL).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 February 2002.  The application submitted in this case
is dated 15 March 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born on 4 October 1953.  After having had prior
service in the Regular Army and the Army National Guard, he enlisted in the
U. S. Army Reserve (USAR) on 26 October 1983.  He was promoted to Sergeant
Major, E-9 on 1 December 1997.  He served as a Command Sergeant Major until
his later appointment back to Sergeant Major on an unknown date.   His
notification of eligibility for retired pay at age 60 (his 20-year letter)
is dated 25 November 1998.

4.  Effective 1 October 2001, the applicant was transferred from a TPU to
the IRR.

5.  U. S. Army Reserve Personnel Command (PERSCOM, currently designated
USAHRC – STL) orders C-02-205287 dated 22 February transferred the
applicant to the Retired Reserve effective 22 February 2002.  The reason
for transfer is listed as “non-participation.”

6.  The applicant provided a memorandum of support from the Battalion
Executive Officer of the 1st Battalion, 414h Regiment, 1st Training
Brigade, 104th Division. The Executive Officer recommended the applicant’s
records be corrected to allow him to move back to the IRR, then return to
an active Reserve status, then become part of the TPU environment and join
that unit.

7.  By letter dated 5 January 2006, the 70th Regional Soldier Support
Center Team, USAHRC – STL informed the applicant that his removal from an
active status [and transfer to the Retired Reserve] was due to operation of
law, thus making him ineligible for transfer to the Ready Reserve.

8.  Department of Defense Instruction (DODI) 1200.15 (Assignment to and
Transfer Between Reserve Categories, Discharge from Reserve Status,
Transfer to the Retired Reserve, and Notification of Eligibility for
Retired pay), dated          18 September 1997, paragraph 5.3.3 states that
Reservists who have qualified for retirement, except for having reached 60
years of age, are required to attain 50 points annually during their
anniversary year to be retained in the Ready Reserve or on the active
status list, Standby Reserve.  Waiver of that requirement on a one-time
basis may be made under exceptional circumstances by the Secretary of the
Military Department concerned.

9.  Title 10, U. S. Code, section 10145(d) states that, under such
regulations as the Secretary concerned may prescribe, any qualified member
of a Reserve component or any qualified retired enlisted member of a
Regular component may, upon his request, be placed in the Ready Reserve.
However, a member of the Retired Reserve entitled to retired pay or a
retired enlisted member of a Regular component may not be placed in the
Ready Reserve unless the Secretary concerned makes a special finding that
the member’s services in the Ready Reserve are indispensable.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and
Transfers), dated 15 August 2005, paragraph 6-4, states that transfer from
the Retired Reserve to the Ready Reserve is not authorized for Soldiers
receiving retired pay unless the Secretary of the Army makes a special
finding that their services are indispensable.  A Soldier who is not
receiving retired pay and is otherwise qualified and not prohibited (i.e.,
was removed from an active status by operation of law or by board action)
may be transferred to the IRR or to an appropriate TPU or Individual
Mobilization Augmentee position vacancy.  Paragraph 6-5 provides guidance
on applying for transfer.

DISCUSSION AND CONCLUSIONS:

1.  In accordance with DODI 1200.15, the applicant was properly transferred
from the IRR to the Retired Reserve in February 2002.  However, he was
transferred due to a regulatory requirement, not due to operation of law or
through board action.

2.  DODI 1200.15 does not expressly prohibit movement between a retired
status and an active status.  Contrary to any information provided to the
applicant by USAHRC – STL, in accordance with Title 10, U. S. Code, section
10145 and Army Regulation 140-10, transfer from the Retired Reserve to the
Ready Reserve, provided the member is not receiving retired pay, is
authorized.  The applicant is not yet receiving retired pay.

3.  To prevent any further delay in processing the applicant for transfer
to an active status, PERSCOM orders C-02-205287 dated 22 February
transferring him to the Retired Reserve should be amended to list the
reason for transfer as “voluntary.”  The applicant should then be able to
follow the guidance in Army Regulation 140-10, paragraph 6-5 to apply for
transfer to a TPU.  This would not automatically mean the applicant would
be eligible for transfer to a TPU; however, provided otherwise eligible the
applicant should not be automatically precluded from returning to an active
status.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 February 2002; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   21 February 2005.  The applicant did not file within
the 3-year statute of limitations; however, based on the available evidence
and argument, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

__jrm___  __swf___  __rch___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by amending PERSCOM orders C-02-205287,
dated    22 February and transferring him to the Retired Reserve, to list
the reason for transfer as “voluntary.”




                            __Jeanette R. McCants__
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005538                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060824                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |135.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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