RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011755 


	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

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson  

Chairperson

Mr. Larry W. Racster  

Member

Mr. Rodney E. Barber

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 a waiver to allow him to return as a drilling member of the Army National Guard.

2.  The applicant states, in effect, that he earned a "20-Year Retirement letter, was a self-motivated Individual Ready Reserve (IRR) Soldier, and during the period March 2002 through April 2003 a civilian job kept him away from home which made it difficult to earn points for a "good" year.

3.  The applicant continues that, in May 2003, he received notice of a pending transfer to the Retired Reserve if a waiver request was not received.  The applicant argues that he contacted the Army Reserve Personnel Center (ARPERCEN) and was informed that he should let the transfer take place and that he would be able to reaffiliate at a later date.

4.  The applicant states that in 2005 he found a new job that allowed time for him to be a drilling Guardsmen or Reservist.  He contends that he contacted ARPERCEN and was informed that he was not eligible to transition back to the Army National Guard or the United States Army Reserve based on the fact that he had not requested a waiver for the transfer to the Retired Reserve and that he was transfer to the Retired Reserve due to nonparticipation.

5.  The applicant concludes that he is a healthy, capable individual with a varied military background, civilian technical and law enforcement experience who desires to serve in the military again. 

6.  The applicant provides a copy of a Congressional inquiry request and response, a Senator's inquiry request and response, an Annual Retirement Points Statement, a New York Army National (NYARNG) recommendation, a recruiter's recommendation, a request for waiver, transfer orders to the Retired Reserve, and the non-participation notice in support of the application.

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant enlisted in the United States Coast Guard Reserve on 20 April 1979 and transferred to the United States Navy Reserve (USNR) on 20 April 1981.  After a break in service, the applicant again enlisted in the USNR on 4 February 1986 and served until he transferred to the Army National Guard (ARNG) on 4 February 1989.  The applicant's records further show that he transferred from the ARNG to the Individual Ready Reserve (IRR) on 4 February 1996. 
2.  While assigned to the IRR, his retirement years 1997 through 2002 were qualifying years for retirement.  The applicant did not earn enough points for a qualifying year during the period 4 February  2002 through 3 February 2003, therefore, the retirement year for 2003 is not a "good year."
 
3.  On 5 May 2003, the applicant was notified that he had not earned the required 50 points during his most recent retirement year ending (RYE) and that he may request a waiver on a one-time basis.  The applicant was further notified that if he did not remain in an active status by earning 50 points each year, that he had the option of transferring to the Retired reserve or being discharged.

4.  There is no evidence in the available records which shows the applicant exercised his option to request a waiver for achieving the 50 points required to maintain his active duty status.  There is also no evidence in the available records which shows that the applicant was advised to transfer to the Retired Reserve and not to request a waiver.

5.  U.S. Army Reserve Command, Orders Number C-06-315225, dated 12 June 2003, transferred the applicant to the Retired Reserve effective 1 July 2003.

6.  On 15 September 2005, the applicant requested a waiver to be allowed to return as a drilling/active member of the ARNG.

7.  On 30 December 2005, a recruiting noncommissioned officer of the NYARNG recommended approval of the applicant's request for waiver to be transferred from the Retired Reserve to the IRR.

8.  On 25 January 2006, a commander from the NYARNG recommended that Human Resources Command-St. Louis approve the applicant's waiver request.  The commander stated that he would welcome the applicant into the ARNG and that there was a position available within the 204th Engineer Battalion Detachment.

9.  On 14 March 2006, the US Army Human Resources Command notified the applicant that his request to transfer from the Retired Reserve to the IRR was denied based on the fact that he was removed from an active status due to nonparticipation in the USAR.





10.  The applicant provided a memorandum addressed to the Senator from New York from the Director of the Easter Region of the Human Resources Command-St. Louis.  This memorandum informed the Senator that the applicant received a Non-Participation Letter on 5 May 2003 and that at time, the applicant elected to transfer to the Retired Reserve.  The memorandum further stated that on 26 August 2005, the applicant requested to transfer from the Retired Reserve to the IRR and that request was denied because the applicant was separated from an active status due to non-participation which is a disqualifying factor for transfer to the IRR.

11.  Paragraph 6-4 of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers-Army Reserve) provides the criteria for transfer from the Retired Reserve to the Ready Reserve.  Transfers are not authorized for Soldiers receiving retired pay unless the Secretary of the Army makes a special finding that their services are indispensable.  Soldiers, who are not receiving retired pay and are otherwise qualified and not otherwise prohibited, may be transferred to the IRR or to an appropriate TPU or IMA position vacancy. The transfer must be voluntary based on the Soldier's request.  All Retired Reserve Soldiers who were removed from active status by board action or operation of law are ineligible for transfer to the Ready Reserve.  Retired Reserve Soldiers who were removed from active status by operation of law and whose transfer to the Ready Reserve would result in their immediate removal there from by operation of law, are ineligible to transfer to the Ready Reserve. 

12.  Paragraph 7-3.1 of Army Regulation 140-10 provides guidelines for removal based on nonparticipation.  This paragraph states that  an officer (other than a commissioned WO) or enlisted soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer (other than a commissioned WO) or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from active status. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for waiver for transfer from the Retired Reserve to the ARNG was carefully considered.  However, there is no basis to grant the relief requested.



2.  The applicant completed over twenty years of creditable military service, however, he was transferred to the Retired Reserve after he failed to earn 50 points which is required to remain in an active status.  The applicant had the option to request a waiver of his transfer for one-year, however, he did not exercise this option and as a result was transferred to the Retired Reserve.  

3.  The applicant's transfer to the Retired Reserve was accomplished in accordance with applicable law and regulation.  The applicant waited over two-years to attempt to return to an active military status.  Additionally, the applicant did not provide sufficient evidence or argument to grant a waiver for reinstatement in the NYARNG from the Retired Reserve.

4.  Although, the applicant provides evidence that shows that the NYARNG would accept him as a drilling member, the applicant is disqualified for this service based on the fact that he was transferred to the Retired Reserve for nonparticipation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LWR__  __MKP_ __  __REB__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





____M. K. Patterson________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.