RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070010488 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning 

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 discharge orders be revoked and he be transferred to the Retired Reserve.
 
2.  The applicant states, in effect, that he was transferred to the retired list when he turned 60-years old on 10 May 2007.  The applicant continues he was told he would not get "the Blue ID card" as other Retired Reservist because he was discharged from the service and is now referred to as "Former Member."  He states he asked what the difference was and he was told none.  The applicant argues that he is entitled to the same benefits as a Retiree.  

3.  The applicant states that he never received counseling about the effects of being discharged from the Reserves in 1997.  He continues that he would have gone into the Individual Retired Reserves (IRR) and received a Blue ID Card.  The applicant states that he is at fault for not asking enough questions when he received his discharge, but adds if he received counseling he would not have accepted his discharge.

4.  The applicant provides no additional documentary evidence in support of this in support of this 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 served in the United States Naval Reserve (USNR) during the period 2 June 1965 through 16 February 1967, in the United States Air Force (USAF) during the period 17 February 1967 through 
17 December 1970 and the United States Army Reserves (USAR) during the period 13 April 1979 through 22 November 1990.  

3.  Department of the Army Headquarters, Second United States Army, Fort Gillem, Forest Park, Georgia, Permanent Orders Number 18-29, dated 20 November 1990 ordered the applicant's USAR unit to active duty during Operation Desert Shield.  

4.  Department of the Army Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, Orders Number 136-166, dated 16 May 1991, shows he was released from active duty on 10 June 1991, and transferred to Headquarters 125th USAR Command, Nashville, Tennessee.  

5.  The applicant's Notification of Eligibility for Retired Pay at Age 60 (commonly called a 20-year letter) is dated 3 December 1993.

6.  Department of the Army U.S. Army Reserve Personnel Center, St. Louis, Missouri Orders Number D-07-752167, dated 9 July 1997, shows the applicant was honorably discharged from the USAR.  The highest rank the applicant attained was master sergeant/pay grade E-8.

7.  Department of the Army U.S. Army Human Resources Command 1 Reserve Way, St. Louis, Missouri, Orders Number P04-784957, dated 26 April 2007, shows he was placed on the AUS Retired list on 10 May 2007 from the USAR, in accordance with Army Regulation 135-178.  The orders further show that the applicant was also instructed to make an appointment for a retirement briefing and the issuance of new ID cards. 

8.  The applicant's Chronological Statement of Retirement Points, dated 16 October 2007, shows he earned a total of 23 years and 2 days of Creditable Service for Retired Pay.

9.  Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program), paragraph 2-4c(2) states that TPU Soldiers will be allowed to serve until the maximum years of service (MYOS) for their grade, or maximum age under the provisions of AR 140-10, whichever comes first.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) paragraph 6-1 states that eligible Soldiers must request transfer to the Retired Reserve if they are entitled to receive retired pay from the Armed Forces because of prior military service or have completed a total of 23 years and 2 days of active or inactive service in the Armed Forces.


11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 contains guidance on removal from active status and paragraph 7-1a indicates that Soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.

12.  On 29 October 1999, a memorandum issued by the Under Secretary of Defense, states that former members of the Reserve Components who are eligible to receive retired pay at age 60 under Title 10, United States Code (U.S.C), section 12731, but who have terminated their Reserve status, are entitled to receive benefits provided for under Title 10, U.S.C, chapter 54.  Identification (ID) cards reflecting the appropriate benefits have been available at Real-time Automated Personnel Identification System (RAPIDS) sites since December 1999.  Reservists with more than 20 years of qualifying service for retirement at age 60 and who have terminated their Reserve status must simply take their 20-year letter to those facilities in order to obtain an ID card.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his records should be corrected to show he was transferred to the Retired Reserve on 8 July 1997, was carefully considered.

2.  However, by regulation, members of the Reserve Component (RC) who are eligible to receive retired pay at age 60 have the option to be removed from an active Reserve status by either being discharged or transferred to the Retired Reserve.  The applicant did not elect to be transferred to the Retired Reserve at the time of his discharge.

3.  The applicant's record shows that he was honorably discharged from the United States Army Reserve on 8 July 1997.  There is no indication that the applicant elected to be transferred to the Retired Reserve at the time of his discharge, which would have subjected him to recall, or that he has ever attempted to resolve this matter in the more than 10 years since his retirement.  As a result, absent any evidence that indicates he was not properly counseled on or given the option to transfer to the Retired Reserve at the time of his discharge, it must be presumed that his discharge was accomplished in accordance with the applicable law and regulation.  Therefore, it would not be appropriate to credit the applicant service he did not perform between 8 July 1997 and the present, or to grant the requested relief at this late date. 

4.  The applicant is requesting transfer to the Retired Reserve because he is concerned that he will not receive the same benefits associated with having completed 20 or more years of service.  However, such is not the case.  The applicant still has the entitlement to apply for retired pay at age 60 and to obtain ID Cards, even though he has been discharged from the USAR.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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

_MDM___  _RCH__  __JCR___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




     __Mark D. Manning__
          CHAIRPERSON






INDEX

CASE ID
AR20070010488
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.