IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080004093 


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 that her discharge from the U. S. Army Reserve (USAR) be voided and her records corrected to show she transferred to the Retired Reserve.

2.  The applicant states that she has just been informed that in November 1999 she was apparently discharged from her Retired Reserve status.  That occurred without any request on her part, and she was unaware of the significance (of the discharge) or that she had another choice.  Now, when she is checking to make sure that everything is in order for her retired pay to commence, she has been informed that she was discharged and someone checked a box indicating she was too old to be in the Retired Reserve.  

3.  The applicant provides orders, dated 22 July 1998, assigning her to the USAR Control Group (Reinforcement); discharge orders, dated 21 October 1999; and her notification of eligibility for retired pay at age 60 (her 20-year letter).

4.  With her rebuttal to the advisory opinion, the applicant provides a fax cover sheet, dated 3 September 1999; a letter, dated 2 September 1999; a memorandum, dated 24 August 1999; the reverse side of a U. S. Army Reserve Personnel Command (AR-PERSCOM) Form 398 (Election of Options); and an Optional Form 41 (Routing and Transmittal Slip), dated 29 September 1999.


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 25 July 1948.  After having had prior commissioned service in the USAR and the Army National Guard, she returned to the USAR as a commissioned officer on or about 24 May 1997.  

3.  The applicant’s 20-year letter is dated 24 June 1998.  Paragraph 3 of the letter reminded her that since she had completed 20 years of qualifying service she must earn a minimum of 50 points each retirement year to retain an active status.  

4.  The applicant transferred from a troop program unit to the USAR Control Group (Reinforcement) effective 1 August 1998.

5.  By memorandum dated 24 August 1999, AR-PERSCOM informed the applicant that she had been identified as not earning 50 retirement points during her most recent RYE (retirement year ending).  If the information was correct, she was instructed to complete the Election of Options on the reverse and return it by 28 September 1999.  She was informed that failure to respond would result in her being discharged.  She was informed to direct any questions to Team 10.

6.  The applicant provided an Election of Options indicating that she signed the election on 2 September 1999 and elected transfer to the Retired Reserve.  Other options were to request a waiver; to be discharged from the USAR; to indicate that she was a commissioned warrant officer; to indicate that she was receiving Voluntary Separation Incentive or Special Separation Benefit pay; or to indicate that she had earned 50 retirement points for her most recent RYE.


7.  The applicant provided a fax cover sheet, dated 3 September 1999, indicating she had faxed a total of 12 pages to AR-PERSCOM.  She commented on the fax sheet, “Do you have my current address?” and then gave her current address and telephone number.  She also commented, “Let me know if you need more info.”  There may have been an additional comment at the bottom of the form; however, it is illegible.  In a separate letter, dated 2 September 1999, she stated, “Enclosed are the documents showing my assignment to the IRR, my 20 year letter, and my accumulation of 20 years of points.  Please correct my records and I would appreciate a copy of the corrected information.  Also, I am enclosing the documents from the corrections board.  They have backdated my promotion to LTC from Dec 4 ’97, to Dec 25 ’96.  Please make the correction to my records and also submit the info for my back pay.  Let me know what else I need to do to assist you.”

8.  The applicant provided an Optional Form 41 (Routing and Transmittal Slip), dated 29 September 1999, from her personnel management officer (PMO) at
AR-PERSCOM.  The form states, “Your address has been updated.  I have forwarded your 2 promotion letters and your 20 yr letter to be placed on your PERMS [Personnel Electronic Records Management System] file…The letter dated 28 Sep 99 (S) – without obtaining 50 pts you run the risk of being placed in the Retired Reserve…Give me a call to discuss.”

9.  Orders dated 21 October 1999 discharged the applicant from the USAR, in the rank and grade of lieutenant colonel, O-5, effective 1 November 1999.  The discharge orders were sent to her at her updated address.

10.  The Soldier Management System at the U. S. Army Human Resources Command – St. Louis, MO (formerly AR-PERSCOM) indicates that the applicant submitted her application for retired pay around July 2006.

11.  In the processing of this case an advisory opinion was obtained from the Retired Pay Team, U. S. Army Human Resources Command – St. Louis.  That office noted that the applicant was sent a non-participation letter.  They received no response; therefore, the applicant was discharged for non-participation effective 1 November 1999.  That office recommended disapproval of the applicant’s request.

12.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  The applicant responded by providing the documents noted above.  She stated that she faxed the enclosed paperwork to her point of contact (POC) in St. Louis after unsuccessfully trying to contact anyone at Team 10.  She followed the 

instructions of the POC, Larry, and put together the packet which reflected her change of date for promotion, her change of address, and her request to be transferred to the Retired Reserve.  Later that month, she received a copy of her packet back with the Optional Form 41 note attached.  She called that POC, Captain M___, at that time and discussed the situation, at which time Captain M___ indicated she (the applicant) had been erroneously discharged and the POC would correct that.  She understood that she had completed all the necessary paperwork to be transferred to the Retired Reserve at that point.  She also stated that she was enclosing the letter to Larry discussing her transfer to the Retired Reserve and the Election of Options form which was on the back of the non-participation memorandum.

13.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, removing, and transferring USAR Soldiers.  In pertinent part, it states an officer or enlisted Soldier 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 in the USAR.  If a Soldier does not earn the required 50 retirement points during a retirement year and the Soldier does not request a one-time waiver, the Soldier may request discharge or transfer to the Retired Reserve.  

14.  Section 12731(d) of Title 10, U. S. Code, states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.  Section 12738(a) states after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant stated, in her current application, that she had just been informed that in November 1999 she was apparently discharged from her Retired Reserve status.  However, in her rebuttal to the advisory opinion she noted that in September 1999 she discussed the situation with the POC, at which time the POC indicated the applicant had been erroneously discharged and the POC would correct that.


2.  In her rebuttal to the advisory opinion, the applicant stated she understood that she had completed all necessary paperwork to be transferred to the Retired Reserve and that she was enclosing the letter to Larry discussing her transfer to the Retired Reserve and the Election of Options form.

3.  However, the letter she sent to Larry did not discuss her transfer to the Retired Reserve or the Election of Options form.  Her letter to Larry stated, “Enclosed are the documents showing my assignment to the IRR, my 20 year letter, and my accumulation of 20 years of points.  Please correct my records and I would appreciate a copy of the corrected information.  Also, I am enclosing the documents from the corrections board.  They have backdated my promotion…Let me know what else I need to do to assist you.”

4.  It is acknowledged that it appears the applicant completed the Election of Options form; however, there is insufficient evidence to show that it was among the papers faxed to AR-PERSCOM on 3 September 1999 or at any other time.  

5.  Since the applicant acknowledges that she completed the Election of Options form, she should have known that there was a difference between being transferred to the Retired Reserve and being discharged.  She stated she discussed the situation with Captain M___ in 1999 and Captain M___ indicated that the applicant had been erroneously discharged and she (Captain M___) would correct that.  However, the applicant provides no explanation as to why she did not follow up with Captain M___ or someone at AR-PERSCOM to have those discharge orders revoked and corrected orders issued.  

6.  There is insufficient evidence that would warrant granting the relief requested.

7.  The applicant will turn age 60 in July 2008.  She has already applied for retired pay and will be entitled to retired pay at that time.  

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.



	_____xxxxx_____________
      	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)                                         AR20080004093



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004093



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1