RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060006547 


	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. Gerard W. Schwartz

Acting Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, revocation of his discharge and transfer to the Retired Reserve. 

2.  The applicant states, in effect, he was unaware and never notified of a regulation or law requiring him to formally request a transfer to the Retired Reserve.  He was never notified of his discharge from the United States Army Reserve (USAR) Control Group.  In November 2005, he contacted his personnel management officer (PMO) to begin the process of application for retirement benefits.  While reviewing his records, his PMO noticed that he had been discharged effective 26 November 1996.  He was advised of a regulation or law enacted in the 1994-1996 timeframe which required him to make a formal request to be ordered from the USAR Control Group to a retired status and that his failure to comply resulted in his discharge.  

3.  The applicant also states that he was unaware of, and was never notified of this regulation or legislation; therefore, he had no knowledge of its requirements. His home of record was kept current in the system during this period as evidenced by official correspondence sent to him between May 1994 and June 2000.  

4.  The applicant provides copies of his Notification of Eligibility for Retired Pay at Age 60 letter; his reassignment orders; his promotion memorandum for lieutenant colonel; electronic mail (email) correspondence from the Human Resources Command (HRC), St. Louis, Missouri; and his Chronological Statement of Retirement Points, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 November 1996, the date of his discharge from the USAR.  The application submitted in this case is dated 21 April 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's military records show that he enlisted in the Alabama Army National Guard (ALARNG) and entered on active duty for training (ADT) effective 29 December 1970.  He was released from ADT effective 28 May 1971 and transferred to an ALARNG unit.

4.  He was appointed in the ALARNG, as a second lieutenant, effective 16 June 1973.  He was promoted to captain effective 14 June 1980 and promoted to major effective 13 June 1987. 

5.  He was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) dated 5 February 1991.

6.  He was reassigned to the USAR Control Group (Reinforcement) on 1 April 1993 due to employment conflict.  He was promoted to lieutenant colonel effective 12 June 1994.

7.  He was honorably discharged from the USAR effective 26 November 1996.  The Soldier Management System, Human Resources Command (HRC), St. Louis, Missouri, shows that the applicant was discharged for unsatisfactory participation.

8.  In email correspondence, dated 18 August 2006, a staff member of the HRC, St. Louis, questioned the applicant if he were considering electing discharge rather than transfer to the Retired Reserve.  He advised the applicant he may want to reconsider his decision and provided him two methods of calculating his retired pay.  

9.  His Chronological Statement of Retirement Points, dated 26 June 2000, shows he had completed 23 years qualifying service for retired pay as of his retirement year ending (RYE) 20 June 1996.  The statement also shows he failed to earn 50 or more qualifying points from his RYE 20 June 1993 to his date of discharge.

10.  The applicant will reach age 60 on 1 July 2007.

11.  In an advisory opinion, dated 9 June 2006, a staff member of the Transition and Separations Branch, HRC, St. Missouri, stated that the applicant was 

discharged honorably effective 26 November 1996 for failure to maintain an active status in the USAR.  The applicant who had already completed 20 years qualifying service for retired pay at age 60 must maintain an active status by earning 50 or more retirement points each RYE.  A notification memorandum was sent to the applicant advising him of the failure to earn 50 points and requesting his wishes concerning his separation because he had the option of requesting a one-time waiver of the requirement, or discharge from the USAR, or transfer to the Retired Reserve.  The notification memorandum also explained that if no reply was received, the applicant would be discharged in accordance with the law.  The memorandum was sent to the applicant's address on file at that time.  No reply was received; therefore, discharge orders were issued.  The Transition and Separations Branch staff member opined that the discharge orders were valid and should not be revoked.

12.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 23 October 2006.  In the applicant's rebuttal dated 20 November 2006, he stated that he did not receive official notification of his option to request a transfer to the Retired Reserve because it was sent to the wrong address.  He moved from the address stated in the opinion and it had not been his home of record since August 1994.  Further, he kept his home of record current in the system via regular contract with his PMO shortly after he moved from that address.  He also stated that this action in his military record is in error and unjust; therefore, warrants correction.

13.  Army Regulation 135-175 provides the policies and procedures for discharge of Reserve officers.  This regulation specifies that members of the Army Reserve will be removed from an active status for failure to apply for transfer to the Retired Reserve on removal from active status, with or without the officer's consent regardless of the length of commissioned service.  Removal will be by discharge, if the officer is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date the officer is advised that he/she is being removed from active status.

14.  Army Regulation 140-10 provides, with some exceptions, for separation of commissioned officers for non-participation.  Paragraph 7-3.1 specifies that an officer who fails to attain 50 points by the anniversary of his/her RYE date will be removed from active status.  That officer will be discharged or transferred to the Retired Reserve (paragraph 7-1b).  Transfer to the Retired Reserve is authorized when requested by Soldiers who have completed a total of 20 years of active or inactive service in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant was qualified for transfer to the Retired Reserve in view of his completion of 23 qualifying years of service for Reserve retirement.

2.  The applicant contends he was unaware and was never notified he was required to formally request transfer to the Retired Reserve.

3.  HRC-St. Louis operating officials contend he was provided notification of the consequences of not earning 50 or more retirement points; however, it appears this notice may have been sent to an address that was no longer current and had not been for some years.

4.  The applicant contends he kept his PMO apprised of address changes but this cannot be confirmed nor denied.  Each application is reviewed to determine if, by a preponderance of the evidence, an error or injustice exists and if so, if relief is appropriate.

5.  In this case, it was determined that, had the applicant received the notification and been given a choice or the opportunity to request transfer to the Retired Reserve it is likely he would have done so in a timely manner.  

6.  The applicant meets eligibility requirements for assignment to the Retired Reserve.  It would now be equitable and just to correct his military records by revoking his discharge of 26 November 1996, and assigning him to the Retired Reserve effective the same date, with entitlement to retired pay upon his application at age 60.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 November 1996, the date of his discharge from the USAR; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 November 1999.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__JP____  __WDP__  _PMS___  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 revoking his 26 November 1996 discharge from the United States Army Reserve and showing he was transferred to the Retired Reserve effective 26 November 1996, with 23 years of qualifying service for retired pay, upon his application, at age 60.



      __
                CHAIRPERSON




INDEX

CASE ID
AR20060006547
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136.03
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060006547


6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508