IN THE CASE OF:	 

		BOARD DATE:	  18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012318 


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, transfer to the Retired Reserve.

2.  The applicant states, in effect, that he thought he was being transferred to the Retired Reserve in 1991 and did not know he had been discharged in 1992.  He also states that he was completely separated from the military in 1992 and was never given the opportunity to request a transfer to the Retired Reserve.  He did not realize this until he started processing his retirement papers.

3.  In support of his application, the applicant provides copies of his Survivor Benefit Plan Election Certificate form, his Notification of Eligibility for Retired Pay at Age 60 letter, his separation orders, his Army National Guard (ARNG) Retirement Points History Statement, his retirement orders, his Application for Retired Pay Benefits, and his Data for Payment of Retired Personnel form.

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 records show he was appointed in the Mississippi ARNG (MSARNG) as a first lieutenant effective 11 February 1982 with prior enlisted service.  He was promoted to captain effective 12 January 1984.

3.  The applicant was considered and not selected for promotion to major by the 1990 and 1991 Reserve Components Selection Boards (RCSB).

4.  The applicant submitted a copy of his Notification of Eligibility for Retired Pay at Age 60 letter dated 5 May 1991.

5.  The applicant's records contain a memorandum, dated 24 June 1991, from The Adjutant General's Office, MSARNG, wherein he was notified of his failure to be selected for promotion to major after his second consideration.  The memorandum also advised the applicant that he would be separated from the ARNG not later than 15 July 1991 as directed by the Chief, National Guard Bureau.  The memorandum further advised that if he desired orders transferring him to the Retired Reserve, he must apply in writing by 15 July 1991.  There is no evidence the applicant requested to be transferred to the Retired Reserve prior to 15 July 1991.

6.  The applicant was issued orders separating him from the MSARNG effective 15 July 1991.

7.  The applicant was also issued an NGB Form 22 (Report of Separation and Record of Service) that shows he was honorably discharged from the MSARNG effective 15 July 1991 under the provisions of National Guard Regulation 
635-100 for resignation and failure to be promoted in accordance with Army Regulation 135-155.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with 22 years, 10 months, and 3 days of total service for pay.

8.  The applicant's records also contain an undated memorandum with a suspense date of 17 September 1992 from the Chief, Soldier Support Division, U.S. Army Reserve Personnel Center, St. Louis, wherein the applicant was advised of his options upon non-selection for promotion after a second consideration.  The memorandum advised him, in effect, that officers twice non-selected for promotion must be discharged unless they were eligible for transfer to the Retired Reserve or had a service obligation and were eligible for retention to complete 20 years.  He was advised it was imperative that he complete the election of options.  The memorandum also advised him that if he did not respond, he would be discharged in accordance with the law.  The entry "No Reply" is annotated on the memorandum.

9.  U.S. Army Reserve Personnel Center Orders D-10-254328, dated 30 October 1992, were published discharging the applicant from the Ready Reserve effective 19 July 1991.

10.  The applicant also submitted a copy of his ARNG Retirement Points History Statement Application for Retirement Pay prepared on 26 February 2008 that shows he completed 21 years, 6 months, and 3 days of creditable service for retired pay.

11.  The applicant reached age 60 on 9 July 2008.  He further submitted copies of his Application for Retired Pay Benefits and his Data for Payment of Retired Personnel Form, both dated 9 July 2008.

12.  U.S. Army Human Resources Command Orders P-06-808015 announced the applicant's placement on the Army of the United States Retired List in the grade of captain effective 9 July 2008.

13.  National Guard Regulation 635-100, in effect at the time, prescribed the policies and procedures governing the separation of commissioned officers of the ARNG.  Paragraph 5(3)(a) of this regulation specified that an officer in the grade of captain may tender a resignation upon failure to be selected for promotion to the next higher grade after a second consideration under Army Regulation 
135-155 through channels to The Adjutant General (TAG).  If accepted, TAG would publish orders separating the officer from his ARNG appointment.  Removal from an active status must be accomplished within 90 days after the selection board submits its report to the convening authority.  The regulation also specified that an officer who was removed from active status would be discharged if he was eligible and failed to apply for transfer to the Retired Reserve within 30 days from the date he advised that he was being removed from active status.

14.  Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in an RC has since been amended to the last 6 years, and on 26 April 2005, this requirement was reduced to zero (0) years.

15.  Army Regulation 135-180 also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he or she completes the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was qualified for transfer to the Retired Reserve after completion of over 21 years of service for Reserve retirement as of 15 July 1991 and he believes, in effect, that his status of discharge should be changed to Retired Reserve.

2.  The available evidence shows the applicant was considered and not selected for promotion to major by the 1990 and 1991 RCSB.  He was notified on 24 June 1991 of his pending discharge as a result of his second non-selection.  He was afforded the opportunity to elect to transfer to the Retired Reserve at that time.  When no response was received from the applicant, orders were published on 15 July 1991 discharging him from the MSARNG effective the same day.

3.  The applicant was notified and given the opportunity to request transfer to the Retired Reserve and he did not do so.  He has provided no evidence to show that an injustice occurred during his discharge processing or that a reversal action should be executed at this time to show he was transferred to the Retired Reserve.

4.  The applicant reached age 60 on 9 July 2008 and submitted his application for retired pay.  In accordance with regulatory guidance, even though he had not been transferred to the Retired Reserve, the applicant was eligible to apply for retired pay upon age 60, and it appears that he has already done so.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant’s requests.


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)                                         AR20080012318



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ABCMR Record of Proceedings (cont)                                         AR20080012318



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