RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 February 2008
	DOCKET NUMBER:  AR20080001870 


	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. Richard T. Dunbar

Chairperson

Ms. Marla J. N. Troup

Member

Mr. David R. Gallagher

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 that he has 22 satisfactory years for retirement purposes and through a clerical oversight he was discharged instead of being transferred to the Retired Reserve.  The applicant continues that he did not realize the error until he tried to obtain updated identification cards for himself and his spouse.  The applicant continues that he would like to be transferred to the Retired Reserve and also be issued the proper identification (ID) card.

3.  The applicant provides copies of Department of the Army Headquarters, 94th Regional Support Command, Memorandum, dated 23 February 1999; Department of the Army U.S. Army Headquarters, 78th Division (Exercise), Orders Number 9158-018, dated 7 June 1999; and a 20 year Notification of Eligibility letter, dated 28 July 2004 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 record shows he initially enlisted in the Regular Army on 14 July 1977.  On 23 September 1983, the applicant was honorably discharged from active duty.  The applicant's military record shows he entered the USAR on 23 September 1989.

3.  The applicant provided a Department of the Army Headquarters, 94th Regional Support Command, Memorandum, dated 23 February 1999, which shows that he was reviewed by a medical evaluation board on 13 December 1998, which determined he did not meet retention standards in accordance with Army Regulation 40-501, Chapter 3.  
4.  The memorandum further shows that Soldiers that do not meet retention standards have an option to request continuance in the active USAR, by making a request for consideration of this action or request transfer to the Retired Reserve for this medical condition providing the Soldier has between 15 years and 20 years of service. 

5.  The applicant provided his Department of the Army U.S. Army Headquarters, 78th Division (Exercise), Orders Number 9158-018, dated 7 June 1999, which shows he would be honorably discharged on 1 May 1999 from the USAR, in accordance with Army Regulation 135-178.  The orders further show that the applicant's enlistment in the USAR on 14 November 1995 would be terminated on 1 May 1999. 

6.  The applicant's Chronological Statement of Retirement Points, dated 30 January 2008, shows he earned a total of 22 years, 7 months, and 5 days of Creditable Service for Retired Pay.

7.  In connection with the processing of this case, an advisory opinion was obtained from HRC-St. Louis Chief, Transitions and Separations.  This official stated that on 28 July 2004, a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year-Letter) was sent to the applicant with instructions and options concerning his retired pay.  Additionally, it stated that the applicant has over 22 satisfactory years for retirement purposes and that the transferring of a Soldier to the Retired Reserve is not under their purview.

8.  On 12 June 2007, the applicant was provided a copy of the HRC-St. Louis advisory opinion for comment or rebuttal.  The applicant's record shows he concurred with the advisory opinions findings on 22 June 2007.

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 20 years 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 contends that his records should be corrected to show he was transferred on 1 May 1999 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.  The applicant did not elect to be transferred to the Retire Reserve at the time of his discharge.

2.  Evidence of record shows that the applicant, while serving in the USAR, failed to meet retention standards as determined by a medical evaluation board on 13 December 1989.  

3.  The applicant's record shows that he was honorably discharged from the United States Army Reserve on 1 May 1999.  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 discharge.  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.  

4.  The applicant is requesting transfer to the Retired Reserve 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 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

_RTD_ __  _MJNT_  __DRG___  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.




_Richard T. Dunbar___
          CHAIRPERSON



INDEX

CASE ID
AR20080001870
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.  
135.0200/RetReservs
2.

3.

4.

5.

6.