IN THE CASE OF:	  

		BOARD DATE:	       29 July 2008

		DOCKET NUMBER:  AR20080005973 


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 his 14 November 1987 discharge from the United State Army Reserve (USAR) be changed to transfer to the Retired Reserve.

2.  The applicant states that this action was an administrative error and should be corrected so that he can be eligible for more complete benefits.  

3.  The applicant provides copies of his Notification of Eligibility for Pay at Age 60 [20-year letter], dated 18 January 1991; discharge orders dated 14 November 1997; AHRC Form 249-2-E (Chronological Statement of Retired Points;  Application for Uniformed Services Identification Card, dated 20 June 2006; Reassignment Orders ,Voluntary Transfer- Employment Conflict, dated 
30 December 1996; DA Form 4187 (Personnel Action) requesting termination of appointment, approved 31 December 1996.  

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 17 June 1946.  He joined the Wisconsin Army National Guard on 2 June 1971 and transferred to the United States Army Reserve on 14 November 1977.  He was issued a 20-year letter on 18 January 1991 and completed 27 years of creditable service for retirement at age 60 on 
2 June 1997.

3.  He was discharged on 14 November 1997.  He reached age 60 on 17 June 2006.  Defense Finance and Accounting Service verified he is being paid based on the current pay chart.  His application to this Board is dated 18 March 2008.  

4.  Paragraph 2-1 of Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) provides that an individual need not have a military status at the time of application for retired pay.  Paragraph 2-2 states that each individual is responsible for submitting their own application for retired pay and describes the process as follows:  The DD Form 108 (Application for Retired Pay Benefits) (10 USC 1331) is the only form on which application for this pay will be made.  Approximately 6 months prior to reaching age 60, eligible soldiers assigned to the Retired Reserve will receive DD Form 108 (Application for Retired Pay Benefits) and DA Form 4240 (Data for Payment of Retired Army Personnel) from ARPERCEN.  Soldiers assigned to Army National Guard and Army Reserve units should obtain DD Form 108, and if available, the supporting form indicated above, from their unit commanders. Individuals who do not hold a current military status may obtain DD Form 108 from offices of State adjutants general, Reserve training centers, or from the Commander U.S. Army Reserve Personnel Center, ATTN: DARP-PAR, 9700 Page Blvd., St. Louis, MO  63132-5200.

5.  During the processing of this case an advisory opinion was obtained from the Human Resources Command, St. Louis, Missouri.   The Transitions and Separations Branch reported that the applicant had been discharged because he failed to respond to the 14 November 1997 memorandum concerning his intentions at the end of his term of service.  Transfer to the Retired Reserve was recommended. 

6.  The advisory opinion was provided to the applicant for concurrence or comment and he concurred.


DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the advisory opinion, there is no evidence of any error or injustice.  The applicant's discharge resulted because he failed to take action at the end of his period of service.  After 27 years he knew or should have known that he would be discharged unless he did something. 

2.  The applicant reached age 60 before he ever applied to this Board.  By his own actions, he forfeited the benefits he could have received as a member of the Retired Reserve.  He may have also avoided recall as many others may not have.  The applicant was a command sergeant major; therefore, it is reasonable to presume that he made an informed decision.    

3.  There is no benefit for transferring the applicant to the Retired Reserve at this late date.  By application for Retired Pay at Age 60 his status is exactly what it would have been had he been transferred to the Retired Reserve.  The Defense Finance and Accounting Service verified he is being paid based on the current pay chart.

4.  At this point, no correctable error of injustice exists.  Nothing is to be gained by retroactively changing his status.  His request should be denied.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  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.
 



      _______ _   _X______   ___
               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)                                         AR20080005973



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ABCMR Record of Proceedings (cont)                                         AR20080005973



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