IN THE CASE OF:	  

		BOARD DATE:	       9 APRIL 2009

		DOCKET NUMBER:  AR20080011124 


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, in effect, that U.S. Army Reserve Personnel Center, St. Louis, MO, Orders D-03-631773, dated 27 March 1996, be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states that he was originally transferred to the U.S. Army Reserve Control Group (Reinforcement) per Headquarters, U.S. Army Reserve Command, Atlanta, GA, Orders 94-170-011, dated 8 June 1994.  He states he was subsequently given an honorable discharge based on Orders D-03-631773, dated 27 March 1996.  He alleges that this discharge in 1996 has severely impacted his retirement pay.

3.  The applicant provides the following documents in support of his application:  a personal statement, dated 15 June 2008; Orders 94-170-011, dated 8 June 1994; Orders D-03-631773, dated 27 March 1996; electronic mail messages regarding his request for transfer to the Retired Reserve; his nonparticipation letter in the U.S. Army Reserve (suspense dated 22 March 1996); his election of options; his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 27 April 1992; and his Chronological Statement of Retirement Points, dated 21 September 2006.

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 23 April 1948.  He served in the Regular Army from 16 December 1968 to 18 September 1970.  On the following date, he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He continued to serve in the U. S. Army Reserve through reenlistments.

3.  The applicant’s Notification of Eligibility for Retired Pay at Age 60 is dated 27 April 1992.

4.  Headquarters, U.S. Army Reserve Command, Orders 94-170-01, dated 8 June 1994, released the applicant from his current assignment and reassigned him to the U.S. Army Reserve Control Group (Reinforcement) effective 1 June 1994.

5.  The applicant received a "nonparticipation letter" in 1996 with a suspense date of 22 March 1996 for failing to actively participate at the 50-point or higher level as required by law.  The "nonparticipation letter" advised the applicant that if a Soldier did not earn the required 50 points during a retirement year, the regulation provided a waiver on a one-time basis.  He was advised that he must request transfer to the Retired Reserve, request a discharge, or request a one-time waiver based on documented reasons that prevented his active participation.  On 29 February 1996, the applicant submitted his request for a waiver.  He acknowledged that he understood that this waiver was a one-time option and he indicated that documentation indicating nonparticipation was due to circumstances beyond his control was attached to support his request.  The documentation is not available.

6.  U.S. Army Reserve Personnel Center Orders D-03-631773, dated 27 March 1996, discharged the applicant from the U.S. Army Reserve effective 27 March 1996 in the rank of command sergeant major.

7.  The applicant's Chronological Statement of Retirement Points, dated 21 September 2006, shows he completed 22 years, 9 months, and 3 days of qualifying service for retired pay at age 60.

8.  The applicant reached age 60 on 23 April 2008.

9.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states, in pertinent part, that eligible Soldiers must request transfer/assignment to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge in 1996 has severely impacted his retirement pay.  

2.  The applicant received his Notification of Eligibility for Retired Pay at Age 60 on 27 April 1992.

3.  The applicant received a "nonparticipation letter" in 1996 for failing to actively participate at the 50-point or higher level as required by law.  At that time, he was advised that he must request transfer to the Retired Reserve, request a discharge, or request a one-time waiver.  In February 1996, he elected to submit a request for a one-time waiver.  However, there is no evidence of record which indicates the waiver was approved and in March 1996 he was discharged from the U. S. Army Reserve.  However, neither is there evidence to show that the applicant questioned the non-receipt of his request for a waiver in a timely manner.

4.  In the absence of evidence to the contrary, such as his request for transfer to the Retired Reserve, it must be presumed that the discharge from the U.S. Army Reserve Control Group (Reinforcement) was properly processed.  Therefore, there is no basis for granting the applicant's request.

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.



      ___________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)                                         AR20080011124



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ABCMR Record of Proceedings (cont)                                         AR20080011124



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