RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060007702 


	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

Ms. Wanda L. Waller 

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

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, that his discharge orders be revoked and he be transferred to the Retired Reserve.

2.  The applicant states, in effect, that he was unaware that he had been discharged in 1995 because he never received any discharge orders and that he discovered this error in 2005 when he called personnel in St. Louis, Missouri on an unrelated issue.  He contends the discharge is in error and should be changed to reflect that he was placed in the Retired Reserve.  

3.  The applicant provides a copy of his 20-year letter, dated 5 August 1999; his discharge orders, dated 31 January 1995; a letter, dated 18 April 2005, from the National Personnel Records Center in St. Louis, Missouri; and a copy of his Chronological Statement of Retirement Points.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 January 1995.  The application submitted in this case is dated 23 May 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 25 September 1949.  He served on active duty from 29 July 1969 through 24 October 1970.  After a break in service, he enlisted in the U.S. Army Reserve (USAR) on 9 January 1976.  

4.  Headquarters, U.S. Army Reserve Command Orders 95-080-003, dated 
31 January 1995, show the applicant was discharged from the USAR effective 
31 January 1995.

5.  The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 5 August 1999. 

6.  In October 1999, guidance put out by the Under Secretary of Defense provided that former members of the Reserve Components are entitled to certain benefits.

7.  In the processing of this case, a staff advisory opinion was obtained from the U.S. Army Reserve Command at Fort McPherson, Georgia.  That office did not agree with the applicant’s allegation that his discharge orders were in error and should be revoked.  The opinion states that the applicant was discharged due to expiration term of service (ETS) and when these orders were issued it was the Enlisted Personnel Management Branch policy for the analyst processing the discharge to check for the number of qualifying years for retirement before publishing ETS discharge orders on Troop Program Unit Soldiers in the rank of staff sergeant and above.  When the applicant’s packet was submitted for ETS discharge, he would have had 19 years.  The analyst would have contacted him to confirm the request for discharge since he was so close to 20 years.  In order to have the discharge approved, the analyst would have had to document the contact, or attempted contacts, with the applicant.  Without this documentation the order would not have been processed, most especially for a Soldier with 
19 years.  Additionally, the analyst would have had to prepare an Honorable Discharge Certificate for signature and submit it with the packet prior to the finalization of the order.  This would have required a second check before the certificate was issued.  The opinion pointed out the initials within the official signature block of the issued order and stated that these initials indicate that the supporting documents and contact with the applicant was either made, or every attempt to contact him was made, prior to the final publishing of the order.  A Soldier is required to request transfer to the Retired Reserve as there is no authority to reassign a Soldier to the Retired Reserve involuntarily.  If the analyst was unable to contact the applicant, discharge was the only recourse.  The opinion states the applicant was in the military for 20 years and should have had enough experience in the military to raise a question concerning his status when, in 1995, he states he did not receive any orders.    

8.  The advisory opinion was provided to the applicant on 8 February 2007 for comment or rebuttal.  On 13 February 2007, he responded.  In summary, he stated that his contractual obligation ended 8 January 1995 which gave him 
20 years, 2 months, and 26 days.  He states that he had no knowledge or instruction from any personnel analyst regarding his discharge process.  He contends that administrative error caused this problem (failure of the administration to follow personnel management branch established policy; administrative error in analyzing the correct number of qualifying years of record for retirement; failure to notify him of the discharge thereby denying him the opportunity to correct the record; failure to check the correct qualifying years of record; and failure to check his records to determine the number of qualifying years).  He further states that according to the advisory opinion if the analyst processing these orders had followed established Personnel Management Brach policy he would have been placed in the retired reserve in January 1995 instead of being discharged.  

9.  Army Regulation 135-180 implements statutory authorities governing the granting of retried pay to Soldiers and former Reserve Components Soldiers.  Each qualified individual is responsible for submitting an application for retired pay (DD Form 108) six months prior to age 60 and that those without a current military status may obtain the form from a local Reserve Component unit or by writing the U.S. Army Human Resources Command in St. Louis, Missouri.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided evidence to show he requested transfer to the Retired Reserve in a timely manner nor has he shown how his discharge has been detrimental to any benefits to which he is entitled.

2.  The Under Secretary’s memorandum and attachment are provided to the applicant so he may utilize those administrative remedies to obtain the documents needed to authorize him the benefits to which he is entitled. 

3.  Records show the applicant should have discovered the alleged error now under consideration on 31 January 1995; therefore, the time for the applicant to file a request for correction of any error expired on 30 January 1998.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

WP____  ___PS___  __JP____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__William Powers______
          CHAIRPERSON




INDEX

CASE ID
AR20060007702
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
135.0100
2.

3.

4.

5.

6.