RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	1 April 2008  
	DOCKET NUMBER:  AR2007002817


	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.


x

	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, that he would like his current status changed to Retired Reserve.  

3.  The applicant provides his Chronological Statement of Retirement Points, dated 11 January 2007, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was enlisted in the Army National Guard (ARNG) effective 7 January 1970 and was released effective 10 January 1974.  He enlisted in the United States Army Reserve (USAR) effective 11 January 1974.  He was honorably released from the USAR, effective 1 February 1980.

3.  The applicant was appointed in the USAR, as a second lieutenant, effective 2 February 1980.  He was promoted to major effective 7 February 1992, with a date of rank of 7 August 1991.

4.  The applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) dated 31 August 1991.

5.  The applicant was discharged from the USAR, under the provisions of 135-175, in the grade of major, effective 30 August 1999.  His records do not contain any documents of any actions taken that lead to his discharge from the USAR.   His records also do not show he requested transfer to the Retired Reserve.

6.  The Soldiers Management System (SMS), Human Resources Command, St. Louis, Missouri, shows the applicant was reassigned to a Reserve non-unit category due to the expiration of his USAR service obligation with an effective date of 19 February 1997.  The SMS also shows the applicant was discharged from the USAR for non-selection for promotion on 30 August 1999.  The SMS Transaction History File entries show the applicant was sent an ARPC FL-3244-2 (Reserve Status Statement and Election of Options) on 21 July 1999 and a response was not received from the applicant as of 23 August 1999.  On 26 August 1999, orders were published discharging the applicant effective 30 August 1999.

7.  The applicant submitted a Chronological Statement of Retirement, dated 11 January 2007, that shows he had 4 years creditable service in the ARNG, 6 years enlisted service in the USAR, and 16 years service as an USAR officer for a total of 26 qualifying years of service for Reserve retirement.  He will reach age 60 on 17 March 2009.

8.  Army Regulation 135-175, Chapter 4, in effect at the time, prescribed the policies and procedures under which USAR officers may be discharged.  This regulation specified that a Reserve officer in the grade of major, who had completed his statutory military obligation, would be discharged for failure to be selected for promotion after a second consideration by a Reserve Components Selection Board.  The regulation also specified that an officer who was removed from active status would be discharged, if he was eligible and failed to apply or transfer to the Retired Reserve within 30 days from the date he was advised that he was being removed from active status.

9.  Army Regulation 135-180 (ARNG and USAR Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) soldier.  The requirement to serve the last 8 years in a RC has since been amended to the last 6 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was qualified for transfer to the Retired Reserve in view of his completion of 26 years of service for Reserve retirement as of 30 August 1999. He believes, in effect, that his current status of discharged should be changed to Retired Reserve.

2.  The SMS Transaction History File shows the applicant was notified on 21 July 1999 of his pending discharge in accordance with Army Regulation 135-175, for non-selection for promotion.  He was afforded the opportunity to elect a transfer to the Retired Reserve at that time.  When no response was received from the applicant as of 23 August 1999, orders were published on 26 August 1999 discharging him from the USAR effective 30 August 1999.

3.  In this case, it was determined that the applicant was notified and given the opportunity to request transfer to the Retired Reserve and did not do so.  He has provided no evidence to show that an injustice occurred during his discharge processing or that a reversal action should be executed at this time to transfer him to the Retired Reserve.

4.  In accordance with regulatory guidance, without transfer to the Retired Reserve, the applicant is eligible to apply for retired pay upon age 60.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x _  __x____  __x____  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.



___      x___________
          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.