RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060012956 


	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

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

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  The applicant requests, in effect, that his discharge be rescinded or revoked and that he be transferred to the Retired Reserve, effective 20 September 2001.

2.  The applicant states, in effect, that his record is in error due to his request prior to departing (retirement) from the "Active Army Reserve" to be placed in the Retired Reserve. 

3.  The applicant provides a copy of his separation orders, dated 11 October 2001, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 11 October 2001, the date he was honorably discharged.  The application submitted in this case is dated 29 August 2006 but was received on 12 September 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 he was appointed in the Reserve as a captain (CPT/O-3) effective 1 June 1990, with prior commission service.  He was promoted to lieutenant colonel (LTC/O-5) effective 6 June 1997.

4.  On 28 October 1998, the Army Reserve Personnel Command (AR-PERSCOM) notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

5.  On 11 October 2001, orders were published discharging the applicant from the USAR Control Group (Reinforcement), with an effective date of 11 October 2001, in the rank of LTC.



6.  The applicant's Summary of Retirement Points shows that for retirement year ending (RYE) 11 May 2001 he earned a total of 37 retirement points and that he had completed 22 years, 1 month, and 1 day of qualifying service for retirement purposes.  

7.  The Soldier Management System (SMS) maintained at the US Army Human Resources Command-St. Louis, Missouri, indicated that the applicant was notified of his non-participation status and a tracer action was sent to him.  Following a delay of 3 weeks beyond the suspense date discharge action was initiated due to non-participation.

8.  Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days.  

9.  Paragraph 4-4 of the same regulation pertains to the removal from an active status.  It states, in pertinent part, that members of the Army Reserve will be removed from an active status if they fail to earn sufficient retirement points for retention or fails to apply for transfer to the Retired Reserve on removal from an active status.  An officer who is removed from an active status will be discharged if he is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date they are advised that they are being removed from active status.

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.

11.  Chapter 6, of the same regulation, pertains to transfer to and from the Retired Reserve.  Paragraph 6-1 of Army Regulation 140-10 pertains to eligibility. Subparagraph 6-1a(2) states that eligibility Soldier must request transfer if they have completed a total of 20 years of active or inactive service in the US Armed Forces.

12.  Paragraph 7-1, of the same regulation pertains to reasons for removal.  Soldiers removed from an active status will be discharged or transferred to the Retired Reserve.  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.

13.  Paragraph 7-3.1 of the regulation states that an officer 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 (Individual Ready Reserve), or Standby Reserve (Active List).  An officer (other than a commissioned WO [Warrant Officer]) or enlisted Soldier who fails to attain 50 points by the anniversary of their retirement year ending date, will be removed from an active status. 

14.  The term "good years" is an unofficial term used to mean years in which 
50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was issued a 20-Year Letter on
28 October 1998 and had completed 22 years, 1 month, and 1 day of qualifying service for retirement on 11 October 2001.  He earned a total of 37 retirement points for his RYE of 11 May 2001. 

2.  The SMS, maintained at the AHRC-St. Louis, indicated that the applicant was notified of his nonparticipation status and a tracer action was sent to him.  However, following a delay of 3-weeks beyond the suspense date discharge action was initiated due to non-participation.

3.  The applicant was removed from an active status and was discharged from the USAR Control Group (Reinforcement) effective 11October 2001, in accordance with the appropriate regulation.

4.  It is noted that had the applicant responded to his tracer action and took the appropriate action he would have been transferred to the Retired Reserve.

5.  The applicant contends that his record is in error due to his request prior to departing (retirement) from the Active Army Reserve to be placed in the Retired Reserve; however, he provided no documentary evidence to show that his record was in error.






6.  The applicant’s discharge was accomplished in accordance with law and regulations applicable at the time.  However, it is apparent that the applicant was qualified for transfer to the Retired Reserve as indicated by the issuance of a   20-Year Letter.  He was required to earn a minimum of 50 points in each subsequent RYE; however, he failed to earn 50 retirement points during his RYE of 11 May 2001, and was declared an unsatisfactory participant and was discharged.

7.  The applicant is entitled to have his discharge order revoked to, in effect, fully qualify him for transfer to the Retired Reserve and to qualify him to receive retired pay, on application, at age 60.

BOARD VOTE:

__ena___  __AU  __  __RB____  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:

a.  by revoking the applicant's 11 October 2001 discharge from the USAR; and

b.  by showing that he was transferred to the Retired Reserve effective
11 October 2001.




_____Eric N. Andersen_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012956
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070517
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20011011
DISCHARGE AUTHORITY
AR135-175 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.