RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 February 2008
      DOCKET NUMBER:  AR20070013059


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Sherri V. Ward                |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 30 October 1991, discharge
from the United States Army Reserve (USAR) be voided and that he be
transferred to the Retired Reserve on that same date in lieu of being
discharged.

2.  The applicant states, in effect, that he was discharged from the USAR
on
20 October 1991, and he understands that he should have been transferred to
the Retired Reserve.  He states that now that he is 59 years old, he is
trying to make some corrections to his retirement.  He states that he is
being credited with 21 years of qualifying service, although he served for
24 years.

3.  The applicant provides no additional documentary evidence in support of
his 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 record shows he served in various capacities in the
USAR from 11 August 1967 through 30 October 1991.  His Retirement Points
Summary shows he earned 1799 cumulative retirement points and a total of 21
qualifying years for retirement.

3.  On 23 March 1990, the United States Army Reserve Personnel Center
(ARPERCEN) published a 20-Year Letter notifying the applicant he had
completed the required years of service necessary to qualify for retired
pay at age 60.

4.  On 30 October 1991, Headquarters, Second United States Army, Fort
Gillem, Forrest Park, Georgia, published Orders 021-003, directing the
applicant's discharge from the USAR, effective 30 October 1991.
5.  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.

6.  An Under Secretary of Defense Memorandum, dated 29 October 1999,
granted former members of the Reserve Components (RC), who are eligible to
receive retired pay at age 60, the entitlement to receive those benefits
authorized by chapter 54 of Title 10 of the United States Code, which are
normally associated with being in the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his USAR discharge be voided and that he
be transferred to the Retired Reserve was carefully considered.  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.

2.  The evidence of record in this case confirms the applicant was
honorably discharged from the USAR on 30 October 1991.  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 15 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’s service he did not perform between 30 October 1991 and the
present, or to grant the requested relief at this late date.

3.  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.

4.  The applicant is advised that membership in the Retired Reserve is not
required for him to receive retired pay at age 60 and even though
discharged, he remains eligible to apply for retired pay.  Further, a 29
October 1999 Under Secretary of Defense Memorandum authorized former
members of the RC, who are retirement eligible, entitlement to benefits
authorized by chapter 54 of
Title 10 of the Untied States Code.  A copy of this memorandum is enclosed
for the applicant’s information regarding the scope of his benefit
entitlement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MKP     __SVW      __JCR __  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.




                                  _____Margaret K. Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070013059                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1991/10/30                              |
|DISCHARGE AUTHORITY     |AR 135-100                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  338  |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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