RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070012558 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 her discharge orders be revoked and she be transferred to the Retired Reserve. 

2.  The applicant states, in effect, that she resigned her commission in the Florida Army National Guard (FLARNG) after receiving her 20-year letter.  The effective date was 1 September 1999.  She received orders placing her in the Retired Reserve, which is exactly what she asked for.  She never intended to continue drilling with any unit after she retired because she had 2 young daughters and she is a high school teacher.  When she received another set of orders placing her in the Individual Ready Reserve (IRR), she was confused.  The following summer, she received orders stating that her federal recognition had been withdrawn and she believed it had something to do with her retirement.  But then she received another order showing that she was discharged from the USAR rather than being transferred to the Retired Reserve.  She contends that she did not receive a retirement briefing from her unit.  

3.  The applicant provides a copy of her withdrawal of federal recognition; copies of her discharge orders; and a copy of her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

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 was born on 21 March 1959.  The applicant served in the Regular Army and the FLARNG from 5 March 1979 through 1 September 1999. Her retirement points summary shows that for retirement year ending (RYE) 20 February 2000, she had 21 years of qualifying service for non-regular retirement. 

3.  On 19 July 1999, the applicant was notified of her eligibility for retired pay at age 60.

4.  On 1 September 1999, the applicant was separated from the FLARNG.  Orders Number P210-021, Departments of the Army and the Air Force, FLARNG, dated 29 July 1999, transferred her to "ARPERSCOM (Army Personnel Command), St. Louis, Missouri Retired Reserve Control Group (Retired)."  

5.  Orders Number P224-044, FLARNG, amended her separation order from the FLARNG and transferred her to ARPERSCOM, St. Louis, MO Ready Reserve Control Group (IRR).

6.  On 16 May 2000, the National Guard Bureau withdrew her federal recognition.

7.  On 23 May 2000, ARPERSCOM (now called U.S. Army Human Resources Command (HRC)), St. Louis, advised the applicant that Army Regulation 140-10 stated that an officer who has accrued 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status of the USAR.  Those who do not earn 50 points by their RYE dates will be removed from an active status.  She was advised that her most recent RYE showed that she had not earned 50 points during that year and that if she did not remain in an active status by earning 50 points each year, she had the choice of requesting transfer to the Retired Reserve or being discharged.  She was provided an "Election of Options" Form and advised that, if she failed to respond to the notification by 27 June 2000, she would be discharged.  The applicant failed to respond to this notification.

8.  On 3 July 2000, HRC – St. Louis, honorably discharged the applicant from the USAR.

9.  In processing this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, VA who indicated that since the applicant's official record was not available for review on the Interactive Personnel Electronic Records Management System (iPerms), no opinion could be offered.  It recommended she provide her documentation to the ABCMR in order for the Board to make a fair decision in her request.




10.  On 24 September 2007, the applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  To date, he has not responded.

11.  Army Regulation 135-180 (Qualifying Service for Retirement Pay Nonregular Service), implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.

12.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers), covers policy and procedures for assigning and transferring USAR Soldiers.  In pertinent part, it states that transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer.  

13.  Chapter 6 of Army Regulation 140-10 stipulates, in relevant part, that eligible Soldiers must request assignment to the Retired Reserve if they have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  The Soldier completes a DA Form 4651 (Request for Reserve Component Assignment or Attachment) requesting transfer to the Retired Reserve or discharge.

14.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement at age 60.

15.  Department of Defense Instruction (DoDi) Number 1200.15 (Assignment to and Transfer Between Reserve Categories, Discharge from Reserve Status, Transfer to the Retired Reserve, and Notification of Eligibility for Retired Pay), paragraph 5.3.3. stipulates, in pertinent part, that Reservists who have qualified for retirement under Chapter 1223 of Title 10 U.S. Code, except for having reached 60 years of age, are required to attain 50 points annually during their anniversary year to be retained in the Ready Reserve or on the active status list, Standby Reserve.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she requested to be transferred to the Retired Reserve after she received her 20-year letter and when she resigned her commission in the FLARNG.  

2.  The applicant completed the required years of qualifying Reserve service and received notification that she was eligible for retired pay at age 60 on
19 July 1999.  The applicant was discharged from the FLARNG on 1 September 1999 at the age of 40.  The applicant's official record did not contain any evidence covering the applicant's discharge from the FLARNG other than her NGB Form 22 and her discharge orders.  If she executed a DA Form 4651-R, it was not available for review, therefore, in the absence to the contrary, administrative regularity is presumed in her discharge process from the FLARNG.

3.  Reservists who have qualified for retirement under Chapter 1223 of Title 10 U.S. Code, except for having reached 60 years of age, are required to attain 50 points annually during their anniversary year to be retained in the Ready Reserve or on the active status list, Standby Reserve.  The applicant was notified of this requirement, she failed to maintain an active status, and she failed to respond to HRC-St. Louis notification of her options.  As such, she was honorably discharged.  

4.  Given the above, the applicant's discharge was proper and in accordance with regulations.  Notwithstanding the propriety of the applicant's discharge from the USAR, she will not be eligible for retired pay for another 11 years.  It would be in the Government's interest to transfer her to the Retired Reserve where she could be a mobilization asset for a reasonable length of time to come.  The applicant should realize that her desire for assignment to the Retired Reserve entails the possibility of mobilization.

5.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

__tsk___  __jlp___  __dwt___  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 

	a.  revoking HRC-St. Louis Orders D-07-036334, dated 5 July 2000 discharging the applicant from the USAR; and

	b.  publishing orders transferring the applicant to the Retired Reserve effective 3 July 2000. 



						TSK
      ______________________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070012558



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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