IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080003647 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he was transferred to the Individual Ready Reserve (IRR) on 6 January 2003, and then to the Retired Reserve, instead of being discharged.  He also requests consideration for promotion to the rank and grade of Sergeant First Class (SFC)/E-7.

2.  The applicant states, in effect, that he was involuntarily transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) 1995.  At that time he was informed that he was two weeks away from possibly being promoted to E-7.  He further states that prior to June 1997, he received a letter the USAR Personnel Command (AR-PERSOM) informing him that, as a member of the IRR, he was eligible for promotion to SFC/E-7.  At that time, he submitted a promotion packet on his own; however, his former unit administrator informed him they were unable to locate his records.

3.  The applicant states that he never heard from the promotion board.  In December 2001, he contacted his former unit in regard to volunteering for active duty in response to 9-11.  At that time, he filed a Request Pertaining to Military Records.  On orders dated 31 October 2001, he was discharged from the USAR. 

4.  The applicant further states that his former unit requested that he accompany them to annual training in 2000 to assist in the installation of an electrical underground distribution system, with promise of promotion to E-7.  Needless to say, he did not receive the promotion.


5.  The applicant provides an AR-PERSCOM Certificate of Appreciation, dated 11 March 2002; an undated Memorandum of Appreciation from AR-PERSCOM; Headquarters, U.S. Army 94th Regional Support Command (RSC) Orders Number 01-304-004, dated 31 October 2001; Headquarters, U.S. Army 94th RSC Orders Number 95-269-049, dated 26 September 1995; two letters from AR-PERSCOM, with dates of 19 December 2001 and 25 February 2002; U.S. Army 94th RSC Orders Number 006368, dated 12 April 2000; an undated letter from him addressed to AR-PERSCOM, Transition Branch; a letter from him addressed to AR-PERSCOM, dated 26 December 2001; and a Standard Form 180 (Request Pertaining to Military Records), dated 1 December 2001. 

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 26 January 1950, the applicant was born.  He had prior service in the Army National Guard from 7 February 1970 to 12 May 1987.  He enlisted in the USAR on 13 May 1987.  On 25 January 1994, he was promoted to the rank and grade of Staff Sergeant (SSG)/E-6.  

3.  On 15 September 1990, the applicant was issued a notification of eligibility for retired pay at age 60.  He will reach age 60 on 26 January 2010.

4.  On 17 March 1995, the applicant reenlisted in a Troop Program Unit (TPU) for a six-year term of service.

5.  Headquarters, U.S. Army 94th RSC Orders Number 95-269-049, dated 
26 September 1995, show that the applicant was released from the USAR Selected Reserve and transferred to the USAR Control Group (Reinforcement) effective 14 August 1995 by reason of maximum years of service.


6.  The applicant provided an undated letter to AR-PERSCOM in which he was responding to their 12 June 1997 letter (which is not available). He stated, in part, “I hope that this does not jeopardize my chance for promotion to SFC which I have been advised that I have been tentatively identified as eligible for.”  

7.  AR-PERSCOM Orders C-02-004190, dated 15 February 2000, show that the applicant was released from the USAR Control Group (Reinforcement) and assigned to a TPU.  The orders show his expiration of term of service (ETS) was 
16 January 2001.

8.  Headquarters, U.S. Army 94th RSC Orders Number 01-304-004, dated 
31 October 2001, show that the applicant was honorably discharged from the USAR effective 31 October 2001.  The additional Instructions on his orders show that he was held beyond his ETS date through no fault of his own.

9.  The applicant provided a letter from the Chief, Inquiry Management Team, AR-PERSCOM, dated 19 December 2001.  The letter indicates that the applicant was currently a member of a USAR TPU.  The letter states, "Correction of points or other correspondence must go through your chain of command.  Please resubmit your documentation or correspondence to your unit of assignment."

10.  The applicant provided a self-authored letter he addressed to Chief, Inquiry Management Team, AR-PERSCOM, dated 26 December 2001.  He stated that he received a letter dated 19 December 2001 and that he was returning his Request Pertaining to Military Records for processing along with his discharge orders dated 31 October 2001.  

11.  The applicant’s letter continued that his ETS was to be January 2001.  In September 2000, he requested through his command to be transferred to the IRR and in September 2001 he contacted his unit and was informed there was nothing in regards to his request of September 2000.  On 12 September 2001, he again contacted his unit to volunteer his services due to 9-11.  He was advised that his 201 file was missing and had to be located before anything could be done.  On 1 October 2001, the 94th RSC advised him that he would be given an honorable discharge as of 31 October 2001, and that he would have to contact an Army Reserve recruiter to be reinstated.  He stated that he contacted an Army Reserve recruiter in November 2001 and was told nothing could be done until his records were found.


12.  AR-PERSCOM Orders D-01-200737, dated 8 January 2002, show that the applicant was honorably discharged from the USAR effective that date.

13.  The applicant provided an AR-PERSCOM letter, dated 25 February 2002, welcoming him to the IRR.  The letter explains the options he would have from being transferred into the IRR.

14.  The applicant provided an AR-PERSCOM Certificate of Appreciation, dated 
11 March 2002, that recognizes the applicant for his willingness to volunteer for active duty in support in Operation Noble Cause and Operation Enduring Freedom.

15.  The Soldier Management System, Human Resources Command (HRC), St. Louis, Missouri (formerly AR-PERSCOM), shows that the applicant inquired about transferring to the Retired Reserve on 17 January 2008.  It states, "Soldier was discharged from the IRR in 2002.  He wants to be transferred to the retired reserves instead.  I told him this command will not change/revoke the order and place him in the retired reserves because the order was cut in 2002.  I told him he would have to go through ARBA and file a claim with them. I then proceeded to explain the difference to him between the retired reserves and being discharged.  I also explained how this affects his retirement at age 60.  Call not forwarded."

16.  Army Regulation 135-178 establishes policies governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States and the USAR.  In pertinent part, it states that upon ETS the Soldier will be discharged by the separation authority.  It also states that when through administrative error a Soldier is not discharged on the actual date of his or her ETS, he or she will be considered to have been retained beyond normal discharge date for the convenience of the Government. 

17.  Army Regulation 140-10 prescribes policies to assign, remove, or transfer USAR Soldiers.  In pertinent part, it states that Soldiers are authorized assignment to the Retired Reserve under several circumstances, including when the Soldier is entitled to receive retired pay.  Eligible soldiers must request transfer.

18.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, chapter 4, prescribed policy for the promotion of USAR Soldiers assigned to TPUs.  In pertinent part, it stated that promotion was based on unit vacancies.  The promotion selection board would consider Soldiers 

recommended for promotion and select fully qualified Soldiers for placement on the permanent recommended promotion list.  Promotion off the recommended list required the existence of a position vacancy.

19.  Army Regulation 140-158, in effect at the time, chapter 5, prescribed policy for the promotion of Soldiers assigned to the IRR.  In pertinent part, it stated that promotion vacancies were not required for IRR promotions.  Such promotions were governed by mobilization requirements within skill level and military occupational specialty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should show he was transferred to the Retired Reserve.  There are no documents in his records that show he requested transfer the Retired Reserve.  

2.  The available evidence of record shows the applicant last reenlisted on          17 March 1995 for six years, making his ETS 16 March 2001.  Enlisted Soldiers may not be involuntarily held beyond their ETS.  There is no evidence to show he reenlisted or extended his 17 March 1995 enlistment; therefore, his unit issued orders in October 2001 honorably discharging him from the USAR (and acknowledging that he was held beyond his original ETS date through no fault   of his own).  By regulation, he was required to be discharged from the USAR.  

3.  The applicant’s records contain AR-PERSCOM Orders D-01-200737, dated    8 January 2002, that erroneously show he was honorably discharged from the USAR on 8 January 2002.  It appears AR-PERSCOM was not aware that Headquarters, U.S. Army 94th RSC had discharged the applicant in October 2001.  

4.  The applicant also provided an AR-PERSCOM letter, dated 25 February 2002, welcoming him into the IRR.  However, unless he can provide evidence    to show he reenlisted or otherwise extended his 17 March 1995 enlistment, it appears that this letter was also prepared in error.

5.  The applicant contends that he should be considered for promotion to the rank and grade of SFC/E-7.  He stated that he received a letter in 1997 informing him he was eligible for promotion, but it cannot be determined if what he meant was that he was informed that he was eligible for consideration for promotion.  He provides no reasonable explanation of why he waited so long to research the failure to promote him or consider him for promotion.  

6.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx ___  ___xx __  ___xx __  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.




      ___       xxx       ___
            CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080003647





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ABCMR Record of Proceedings (cont)                                         AR20080003647



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