RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 February 2008
      DOCKET NUMBER:  AR20070012521


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 31 August 2001 discharge
from the United States Army Reserve (USAR) be voided and that his records
be corrected to show he was transferred to the Retired Reserve on that same
date.

2.  The applicant states, in effect, that at the time of his discharge, he
believed he was being transferred to the Retired Reserve.  He states that
during this period, his family and he had recently moved and he was in the
process of changing careers.  He states that he recalls some correspondence
with St. Louis, but does not remember the specifics.  He claims a further
search of what military documents he has did not yield an option letter.
At this point, he cannot say with certainty that he either received or
submitted the option letter.  He states that he can say with confidence and
understanding of what was required, that he would have attempted to comply
with any instructions and requirements.  He states that he had to focus on
successfully establishing himself in his civilian career and once he did
so, he looked to ensure he had all his affairs in order.  This led him to
realize that the status of his military career was unsettled.  He concludes
by stating that he is very proud of his years in uniform and only wishes to
ensure his service is concluded properly.

3.  The applicant provides the following documents in support of his
application:  Army National Guard (ARNG) Separation Document (NGB Form 22);
ARNG Retirement Points History Statement (NGB Form 23B); Military
Department of Indiana Orders Number 235-152, dated 22 August 2000;
Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter),
dated 31 March 2000; and Survivor Benefit Plan (SBP) Election Certificate
(DD Form 1883), dated 26 April 2000.

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 record shows that he served in the ARNG in an enlisted
status from 27 March 1979 through 8 May 1981.  On 9 May 1981, he was
appointed a Reserve Commissioned Officer of the Army in the rank of second
lieutenant.

3.  The applicant continued to serve in a commissioned officer status in
either the ARNG or USAR until 31 August 2001, at which time he was
honorably discharged from the USAR.

4.  The applicant's record contains a Notification of Eligibility for
Retired Pay at Age 60 memorandum (20-Year Letter), dated 31 March 2000,
which was issued by the State of Indiana Military Department, Office of the
Adjutant General, Indianapolis, Indiana.  This letter informed the
applicant he had completed the required years of service and that he would
be eligible to receive retired pay at age 60.

5.  United States Army Reserve Personnel Command (ARPERCOM) Orders
D-08-141279, dated 31 August 2001, directed the applicant's honorable
discharge from the USAR on that date.

6.  The applicant's record also contains an ARNG Retirement Points History
Statement, dated 30 March 2000, which shows he completed a total of
20 qualifying years of service for retirement.

7.  In connection with the processing of this case, an advisory opinion was
obtained from a United States Army Human Resources Command, St. Louis,
Missouri (HRC-St. Louis) Human Resources Assistant.  This official states
that at the time the applicant was discharged from the USAR Control Group
(Reinforcement) on 31 August 2001, he was required to request transfer to
the Retired Reserve.  The HRC-St. Louis system indicates an option
statement was mailed to the applicant prior to his discharge; however, a
copy of this option letter is not on file in the record.  This official
further states that the applicant was in possession of a 20-Year Letter at
the time of his discharge and since there is no proof the applicant
actually received an option letter and since it is no longer a requirement
for a Soldier to elect transfer to the Retired Reserve, HRC-St. Louis
recommends his discharge order be revoked and he be transferred to the
Retired Reserve.  The applicant concurred with this advisory opinion on
30 November 2007.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is not aware of receiving an option
letter that required him to request transfer to the Retired Reserve and
that he thought he would automatically be placed in the Retired Reserve was
carefully considered.  Although, the HRC-St. Louis system indicates an
option letter was mailed to the applicant, given the letter is no longer on
file in the record, and based on the fact that a request from the Soldier
is no longer required for transfer to the Retired Reserve, it would be
appropriate and serve the interest of equity to grant the requested relief,
as recommended in the HRC-St. Louis advisory opinion.

2.  In view of the facts of this case, it is concluded that it would be
appropriate to revoke the applicant's 31 August 2001 USAR discharge and to
correct his record to show that he was instead transferred to the Retired
Reserve on that same date.

BOARD VOTE:

___JTM _  __CD ___  __RMN _  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
revoking his 31 August 2001 discharge from the USAR and by showing that he
was instead transferred to the Retired Reserve on that same date.



                                  ______John T. Meixell____
                                             CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070012521                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2001/08/31                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |Ret Qual                                |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |135.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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