RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060009292


      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             |
|     |Ms. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, transfer to the Retired Reserve.

2.  The applicant states, in effect, his discharge should be revoked and
then he should be transferred to the Retired Reserve.  He also states that
he never received a letter from the US Army prior to being discharged.  The
letter would have given him the option of either being transferred to the
Retired Reserve or being discharged.

3.  The applicant provides copies of his Notification of Eligibility for
Retired Pay at Age 60 letter; his Army National Guard (ARNG) separation
orders; his United States Army Reserve (USAR) separation orders; his 2005
and 2006 letters to the Human Resources Command (HRC) and Army Review
Boards Agency, St. Louis, Missouri, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred 2 October 1997, the date of his discharge from the USAR.  The
application submitted in this case is dated 27 June 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 was appointed in the
Pennsylvania Army National (PAARNG), as a second lieutenant, effective
17 March 1979, with prior Navy and Army enlisted service in the Reserve.

4.  He was issued a Notification of Eligibility for Retired Pay at Age 60
on 23 April 1991.

5.  He was honorably separated from the PAARNG effective 20 July 1994 and
transferred to the USAR Control Group (Reinforcement).  He was promoted to
major effective 21 July 1994.

6.  He was honorably discharged from the USAR, as a major, effective 2
October 1997.  His separation orders do not show he was transferred to the
Retired Reserve.  There is also no evidence to show he requested transfer
to the Retired Reserve or to be discharged.

7.  His Chronological Statement of Retirement Points, dated 8 January 2007,
shows he was credited with 20 qualifying years of service, as of his
retirement year ending (RYE) date, 17 March 1997.

8.  In an advisory opinion, dated 28 August 2006, a staff member of the
Transition and Separations Branch, HRC, St. Louis, stated that the
applicant was discharged effective 2 October 1997 for failure to maintain
an active status after completing 20 years qualifying service for retired
pay purposes.  A notification memorandum was sent to the applicant asking
for his wishes concerning the separation 3 months after his RYE date in
March 1997.  The memorandum was sent to an address in Lancaster, PA, which
was the address on file for the applicant.  No reply was received;
therefore, discharge orders were issued.  Those orders are valid orders
issued in accordance with regulation and should not be revoked.  However,
the discharge orders issued on 2 October 1997 were sent to another address
in PA.  Therefore, it is fair to assume that the applicant did not receive
the notification memorandum and would have requested a transfer to the
Retired Reserve if he had the opportunity.  In view of the foregoing, it
was recommended the applicant's discharge be revoked and orders issued
transferring him to the Retired Reserve effective 2 October 1997.

9.  The advisory opinion was forwarded to the applicant for acknowledgement
and rebuttal on 19 December 2006 and he concurred on 27 December 2006.

10.  Army Regulation 140-10 sets forth the basic authority for the
assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7
of the regulation relates to the removal of Soldiers from an active status
and states, in pertinent part, that Soldiers removed from an active status
will be discharged or, if qualified and if they so request, will be
transferred to the Retired Reserve.

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 20
qualifying years of service for Reserve retirement.

2.  There is also no evidence in the available records, and the applicant
has provided none, to show that he requested transfer to the Retired
Reserve; however, had the applicant 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.

3.  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 2 October 1997, and assigning
him to the Retired Reserve effective the same date, with entitlement to
retired pay upon his application at age 60.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 October 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 1 October 2001.  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:

__BPI___  __RDG__  _EM_____  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 2 October 1997 discharge
from the United States Army Reserve and showing he was transferred to the
Retired Reserve effective 2 October 1997, with 20 years of qualifying
service for retired pay, upon his application, at age 60.



                            ____Bernard P. Ingold___  _
                                      CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060009292                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070111                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |102.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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