RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070006738 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez

Member

Mr. Chester A. Damian

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 US Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states, in effect, that he has served 21 years in the U.S. Army Reserve (USAR) and that he did not know he had to request retirement and assumed it was automatic.  

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 10 May 1969, a copy of his Chronological Statement of Retirement Points dated 15 September 2005, a copy of Orders Number 90-01145, dated 26 September 1991 discharging him from the USAR, and a copy of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) dated 25 February 1991 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 born on 6 December 1949.  He enlisted in the U.S. Army Reserve on 11 September 1968 and later had a series of extensions and/or reenlistments in the USAR.  As a result of the applicant's last reenlistment on 11 September 1984 for a period of 6 years, his expiration of term of service (ETS) date was 10 September 1990.  He was retained beyond his ETS and was discharged on 25 September 1990.

3.  On 12 March 1990, the applicant submitted a DA Form 4651-R (Request for Reserve Component Assignment or Attachment) requesting assignment to the USAR Control Group (Reinforcement).  However, on 21 June 1990, the Deputy Chief of Staff for Personnel, 94th U.S. Army Reserve Command, Hanscom Air Force Base, Massachusetts, disapproved the applicant's request for transfer.
4.  On 26 September 1990, Headquarters, First U.S. Army published Orders Number 90-01145, directing the applicant's discharge from the USAR effective 25 September 1990 (VOCO 25 September 1990), under the authority of Army Regulation 135-178 (Separation of Enlisted Personnel).

5.  On 25 February 1991, the U.S. Army Reserve Personnel Command, St. Louis, Missouri, issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

6.  The applicant's Chronological Statement of Retirement Points, dated 15 September 2005, shows that he completed 21 years of qualifying service for retired pay as of his retirement year ending 10 September 1990.

7.  The applicant's records do not show that he requested a transfer to the Retired Reserve.

8.  The applicant will reach age 60 on 6 December 2009.

9.  Army Regulation 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 11 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the separation authority.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 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.  While the applicant contends that he did not know he had to request transfer to the Retired Reserve, because he believed it was "automatic," as a senior non-commissioned officer with 21 years of qualifying Reserve service this contention is found to be without merit.

2.  Evidence of records shows that the applicant although qualified to request transfer to the Retired Reserve, he had requested transfer to the USAR Control Group (Reinforcement) instead.  This indicates that he was aware of the transfer process.

3.  Members of the Reserve Forces who have completed the eligibility requirements for retirement and receipt of retired pay at age 60 receive written notice within 1 year of reaching eligibility.  The following important factors apply:

	a.  A member of the Reserve Forces generally has three options upon receiving notice of eligibility:  (1) Remain in the Ready Reserve and continue to perform inactive duty training, annual training and active duty for training depending on his or her training and pay category, or remain on the active status list of the Standby Reserve and continue to perform unpaid training for the purpose of accumulating retirement points; (2) Transfer to the Retired Reserve; or (3) Request discharge from the Reserve Components.  Choices (1) and (2) carry the possibility of mobilization and deployment; choice (3) exempts the member from any further service.

	b.  Regardless of the option chosen, the member is entitled to receive retired pay at age 60, but must apply for it.  For the applicant, who first entered the service prior to September 8, 1980, his retired pay is computed based upon final pay versus averaging the highest 36 months of pay.  

4.  There is no evidence in the applicant's records, and the applicant did not provide sufficient evidence to show that he requested transfer to the Retired Reserve prior to his ETS.  In view of the foregoing, there is no evidence that the applicant did not know he had to request retirement and that he thought or assumed it was automatic.  Therefore, he is not entitled to the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__bje___  __jam___  __cad___  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.




						Barbara J. Ellis
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006738
SUFFIX

RECON

DATE BOARDED
20071108
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
136.0300
2.

3.

4.

5.

6.