RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2008
	DOCKET NUMBER:  AR20070014978 


	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. Deyon D. Battle

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 discharge be voided and that he be transferred to the Retired Reserve.

2.  The applicant states that on 6 June 1995, he completed the required years of qualifying Reserve service and that he is eligible for retired pay at age 60.

3.  The applicant provides in support of his application, a copy of his Chronological Statement of Retirement Points dated 8 June 2001; a copy of his Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 29 June 2005; a copy of his discharge orders, dated 2 August 1995; a cop of his Certificate of Release or Discharge from Active Duty (DD Form 214); and a copy of his Application for Uniformed Services Identification Card, DEERS Enrollment (DD Form 1172).

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.  On 30 May 1975, the applicant enlisted in the Regular Army (RA) in Chicago, Illinois, for 3 years, in the pay grade of E-1.  He successfully completed his training as a personnel management specialist.   

3.  After completing 3 years of total active service in the RA, the applicant was honorably released from active duty (REFRAD) effective 5 June 1978, and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement), to complete his Reserve obligation.




4.  On 30 October 1980, the applicant was ordered to active duty in the Active Guard Reserve.

5.  On 30 May 1981, the applicant reenlisted in the USAR and he remained a member of the USAR through a series of reenlistments.

6.  On 21 March 1995, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense.  His commanding officer cited a positive urinalysis test for cocaine, as the basis for his recommendation.  He acknowledged receipt of the notification and, after consulting with counsel, he waived his right to have his case considered before a board of officers.

7.  The appropriate authority approved the recommendation for discharge on 24 July 1995.  Accordingly, on 31 August 1995, the applicant was discharged under honorable conditions, under the provisions of Army Regulations 635-200, chapter 14, paragraph 14-12c(1), for misconduct, commission of a series offense.  

8.  On 8 June 2001, the applicants Chronological Statement of Retirement Points was prepared by the United States Army Reserve Personnel Command and it reflects that he completed 20 years and 1 day of qualifying service for retired pay purposes.

9.  On 29 June 2005, the Army Reserve Personnel Command notified the applicant (20-year letter) that he had completed the required years of service to be eligible for retired pay at age 60 (7 November 2016).  

10.  The DD Form 1172, that the applicant submitted in support of his application was updated on 9 August 2007, and it shows that he has not been issued an identification card.

11.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of that regulation relates to the removal of soldiers from 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. 





12.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

13.  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.  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.

2.  The applicant's contentions have been noted.  However, he was not transferred to the Retired Reserve.  He was discharged from the Army due to misconduct and his records properly reflect this information.  He received his 
20-year letter and he will be eligible for retired pay, on application, at age 60.  

3.  It also appears that the applicant is requesting transfer at this date simply because he is concerned that he will lose entitlement to his retired pay at age 60 and the 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 an ID Card, even though he has been discharged from the USAR.



4.  In view of the foregoing, there is no basis for granting the applicant's request.

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.





____M. K. Patterson_____
          CHAIRPERSON




INDEX

CASE ID
AR20070014978
SUFFIX

RECON

DATE BOARDED
20080221
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  338
163.0000/RETIREMENT/SEPARATION
2.  341
136.0300/USAR RETIRED RESERVE
3.

4.

5.

6.