RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 10 January 2008
DOCKET NUMBER: AR20070010286
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. Rene R. Parker
Analyst
The following members, a quorum, were present:
Mr. William Powers
Chairperson
Mr. Jerome Pionk
Member
Mr. Donald Steenfott
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 records be corrected to show that he was transferred to the Retired Reserve.
2. The applicant states that unbeknownst to him, he was honorably discharged from the Reserve instead of being transferred to the Retired Reserve.
3. The applicant provides a copy of his Notification of Eligibility for Retired Pay at Age 60 (20-year letter), orders, ARPC Form 249-2-E (Chronological Statement of Retirement Points), and DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants 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 that he was appointed as a warrant officer in the Army National Guard (ARNG) on 22 July 1980. On 1 October 1999 the applicant was transferred to the United States Army Reserve (USAR).
3. A memorandum dated 24 October 1999 notified the applicant of his eligibility for Retired pay at age 60.
4. Orders D-12-156150 dated 7 December 2001 discharged the applicant from the USAR effective 5 December 2001.
5. The applicants Chronological Statement of Retirement Points, dated
23 October 2007 and 13 December 2007 show he was credited with 20 years of qualifying service.
6. In October 1999, guidance put out by the Under Secretary of Defense provided that former members of the Reserve Components are entitled to certain benefits.
7. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), Paragraph 2-1a indicates 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, and on 26 April 2005, this requirement was reduced to zero (0) years.
8. Army Regulation 135-180 also specifies, in part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
2. The applicant has not provided evidence to show that he requested to be transferred to the Retired Reserve nor has he shown how his discharge has been detrimental to any benefits to which he is entitled.
3. The Under Secretarys memorandum and attachment are provided to the applicant so he may use those administrative remedies to obtain the documents needed to authorize him the benefits to which he is entitled.
4. In view of the foregoing, there is no basis for granting the applicants requests.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__WP ___ __JP ___ __DS ___ 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.
______William Powers_______
CHAIRPERSON
INDEX
CASE ID
AR20070010286
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20080110
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
136.03
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3.
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5.
6.
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