RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070009807 


	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

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 Retired Reserve order be revoked and, as a result, that his records show he is assigned to the Individual Ready Reserve (IRR) so he will be eligible for assignment to a Troop Program Unit (TPU) or active reserve status. 

2.  The applicant states, in effect, that he was seeking an assignment in the active reserves (interpreted as TPU) from the IRR when he was transferred to the Retired Reserve erroneously.  

3.  The applicant provides copies of personnel orders, copies of official electronic messages and facsimile transmittal documents between himself and staff at Human Resources Command (HRC)-St. Louis, two self-authored personal statements, a copy of his chronological statement of retirement points dated 
11 March 2005, and a letter from the U. S. Department of Justice, dated 
5 September 2003 as documentation in support of this application:

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant enlisted in the United States Army Reserve (USAR) on 11 March 1977.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 31M (Multi-channel Communications Equipment Operator).  He served continuously in the USAR TPU program until his voluntary transfer to the USAR Control Group (Reinforcement) on 30 November 2002.

2.  On 22 November 2002, the applicant reenlisted in the USAR for six years in the USAR Contol Group (Reinforcement) with concurrent reassignment to a TPU in pay grade E-8.  Section V (Method of Fulfillment) of his reenlistment contract states, in effect, that Soldiers who reenlist with previous service or currently in service agree that after receiving notification of eligibility for retired pay that he must attain 50 retirement points annually to be retained in an active status in the Selected, Ready, or Standby Reserve (Active List).

3.  On 30 November 2002, the applicant was voluntarily transferred to the USAR Control Group (Reinforcement) per Orders 02-338-00014, dated 4 December 2002, published by Headquarters, 65th U. S. Army Regional Support Command.

4.  The applicant's AHRC Form 249 (Chronological Statement of Retirement Points), dated 11 March 2005, shows that he has 26 years, 4 months, and 13 days of qualifying service for retirement.  This form shows that the applicant did not earn enough points for a qualifying year during the period 11 March 2003 to 10 March 2004. 

5.  On 14 June 2004, the applicant was ordered to active duty for training (ADT) for 14 days and was attached to Company B, 35th Signal Battalion.  HRC-St. Louis published the orders on 28 May 2004.  The purpose of the ADT orders was to comply with the statute which requires members of the IRR to serve an ADT tour for 12 days to meet readiness standards.

6.  On 18 June 2004, the applicant was notified by letter 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.

7.  There is no evidence in the available record, which shows the applicant exercised his option to request a waiver for earning the 50 points required to be retained as a member of the IRR. 

8.  On 12 July 2004, the applicant, in direct coordination with his Enlisted Career Manager at HRC-St. Louis, initiated a request to transfer from the USAR Control Group to the 35th Signal Battalion (USAR).  On 17 July 2004, the Enlisted Career Manager through an electronic message told the applicant that his request to transfer to the 35th Signal Battalion was at the Orders/Assignments Section within HRC-St. Louis. 

9.  U.S. Army Reserve Command, Orders Number C-07-419261, dated 23 July 2004, transferred the applicant from the USAR Control Group (Reinforcement) to the Retired Reserve effective 23 July 2004.  The reason for transfer to the Retired Reserve was non-participation. 

10.  On 2 August 2004, the applicant received a letter from HRC-St. Louis acknowledging his request to volunteer for recall to active duty in support of the Global War on Terrorism and advising him that he had to pass a retention physical examination, meet height and weight standards, pass an Army Physical Fitness Test, and acquire a security clearance.  

11.  On 18 August 2004, the applicant wrote to HRC-St. Louis and requested a transfer to the IRR from the Retired Reserves so he could return as a drilling/active member of the 35th Signal Battalion (USAR).  In this request, he stated he was erroneously transferred to the Retired Reserves and that he never received an unsatisfactory letter.

12.  On 22 January 2007, the applicant wrote a second letter to HRC-St. Louis and requested to be transferred to the IRR from the Retired Reserve to serve his country.  

13.  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. 

14.  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 warrant officer (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. 

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the order transferring him to the Retired Reserve should be revoked, as it is erroneous.  He was seeking an assignment to a TPU from the IRR when HRC-St. Louis published the order involuntarily transferring him to the Retired Reserve.  

2.  The applicant completed over 26 years of qualifying military service and was transferred to the Retired Reserve after he failed to earn 50 points in a year, which is required to remain in an active status.  The applicant had the option to request a waiver for one-year; however, he did not exercise this option and as a result he was transferred to the Retired Reserve.

3.  Based on a review of the electronic messages provided by the applicant and the Soldier Management System (SMS), the records show he was seeking a transfer to a TPU from the USAR Control Group (Reinforcement) while, concurrently, the staff at HRC-St. Louis was complying with the requirement to notify and then involuntarily transfer him to the Retired Reserves for non-participation.  These are two separate personnel actions that required the applicant's individual responses.  The request for transfer to a TPU from the USAR Control Group (Reinforcement) did not negate the applicant's responsibility to respond to the non-participation letter for failure to attain 50 qualifying points during his retirement year.  

4.  The applicant's transfer to the Retired Reserve was accomplished in accordance with applicable law and regulation.  The SMS maintained at HRC-St. Louis shows that the applicant was notified of his non-participation status on 18 June 2004 and he was given 30 days to respond to the notification, in effect, to request a waiver for non-participation.  

5.  The applicant has not shown through the preponderance of evidence that an error or injustice occurred.  He was properly transferred to the Retired Reserve as a non-participant for he did not earn 50 qualifying points the year he was in the IRR nor did he respond to HRC's request for a one-time waiver for non-participation.  Therefore, he is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LCB__  __PMS__  __SLP ___  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.





___Shirley L. Powell___
       CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.