RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060013015 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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 her discharge from the U.S. Army Reserve (USAR) be voided and that she be transferred to the Retired Reserve.

2.  The applicant states, in effect, that she did 20 years of active duty and reserve time and she has earned her retirement, therefore, she would like to receive her retirement pay at age 60.

3.  The applicant provides a copy of a written statement and a copy of her Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 3 February 2000.  The application submitted in this case is dated 7 August 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 records show she served as an enlisted Soldier from 1975 to 1988.  On 8 June 1988, she was appointed a Reserve Commissioned Officer of the Army.  She continued to serve through a series of assignments as a USAR officer.

4.  On 22 June 1995, the applicant was promoted as a Reserve Commissioned Officer in the grade of captain.

5.  A summary of retirement points shows that the applicant had completed  
20 years of qualifying service for retirement.

6.  In an advisory opinion from the U.S. Army Human Resources Command, St. Louis, Missouri, dated 3 October 2006, it was stated that the applicant had earned 20 years of creditable service towards retirement on 24 April 1995 and was transferred into the Individual Ready Reserve (IRR) on 16 October 1996.  It stated that an officer is required to complete 50 points each year in order to be retained in an active status in the IRR once they received their 20 year letter.  On 27 July 1999, a letter was sent to the applicant to inform her that she had failed to maintain 50 points per year while assigned to the IRR after achieving her  
20 year letter.  It stated she received no points for other than membership in the three years prior to the letter sent to her.  She was given a suspense date of  
31 August 1999 to make a choice between two options.  Her options included discharge or transfer to the retired reserve.  The action taken when no response is received is to discharge the officer from the Army Reserve.  She failed to respond by the suspense date, so she was discharged.

7.  Army Regulation 140-10, paragraph 7-3.1, 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 requests that her discharged be voided and that she be transferred to the Retired Reserve.

2.  The evidence of records shows that the applicant was qualified for transfer to the Retired Reserve in view of her completion of 20 qualifying years of service for Reserve retirement.

3.  There is no evidence in the available records, and the applicant has provided none, to show that she requested transfer to the Retired Reserve; however, it appears that had the applicant clearly understood the consequences of not making the election to transfer to the Retired Reserve, she would have elected to transfer to the Retired Reserve in a timely manner.

4.  The applicant met the eligibility requirements for assignment to the Retired Reserve.  It would now be equitable and just to correct her military records by voiding her 3 February 2000 discharge from the USAR and assigning her to the Retired Reserve effective 3 February 2000, with entitlement to retired pay upon her application.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 February 2000; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
2 February 2003.  The applicant did not file within the 3-year statute of limitations; however, based on the recommended relief it would be appropriate to excuse the failure to timely file.

BOARD VOTE:

____jtm__  ____lds__  ___rsv__  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 voiding her 3 February 2000 discharge from the
United States Army Reserve Control Group (Reinforcement) and assigning her to the Retired Reserve effective 3 February 2000, with entitlement to retired pay upon her application.




____________Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013015
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20060322
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.