IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012800


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, regular retirement.

2.  The applicant states, in effect, he enlisted in the U.S. Army Reserve (USAR) on 22 July 1983 for a period of 6 years.  In so doing, he contracted himself to serve 3 years in a troop program unit (TPU).  He moved from Indiana to Florida in 1985 and an "error or injustice occurred" when he was transferred out of the USAR to the Florida Army National Guard (FLARNG).  This action unjustly caused him to "loose [sic] entitlement to [his] active duty military retirement."

3.  The applicant provides:

	a.  a 4-page statement in conjunction with his application;

	b.  twenty-three handwritten pages titled "Index of Documents in Military Jacket";

	c.  DD Form 1966/1-8 (Application for Enlistment), dated 22 July 1983;

	d.  DD Form 4/1-2 (Enlistment/Reenlistment Document), dated 22 July 1983;

	e.  DA Form 3540/1-4 (Certificate and Acknowledgment of Service Requirements), dated 22 July 1983;

	f.  DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 16 March 1985;
	g.  DD Form 368 (Request for Discharge or Clearance from Reserve Component), dated 1 June 1985 (as date of enlistment in the FLARNG);

	h.  seventeen DA Forms 3686 (Leave and Earnings Statement);

	i.  DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 18 October 1983 to 3 February 1984;

	j.  DD Form 1966/1-8, dated 1 June 1985, shows enlistment in the FLARNG for a period of 4 years, 2 months, and 3 days (the remainder of his military service obligation, or MSO);

	k.  DD Form 4/1-2, dated 1 June 1985;

	l.  NGB (National Guard Bureau) Form 21 (Enlistment/Reenlistment Agreement), dated 1 June 1985;

	m.  an unidentified document showing he enlisted in the FLARNG on 1 June 1985 and was advanced from private first class (PFC/E-3) to specialist four (SP4/E-4) on 15 April 1986;

	n.  DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 9 July 1989, with 3-page annex;

	o.  DA Forms 4836 (Oath of Extension of Enlistment or Reenlistment), dated 11 March 1995 and 9 February 2001;

	p.  memorandum, dated 19 March 1999, for correction of retirement points;

	q.  memorandum, dated 25 August 2006, wherein the applicant elected retirement and transfer to the Retired Reserve;

	r.  an excerpt from Title 32, Code of Federal Regulations, section 578.42 (Noncommissioned Officer Professional Development Ribbon);

	s.  two DA Forms 2-1 (Personnel Qualification Record);

	t.  FLARNG promotion certificate to the rank of sergeant (SGT/E-5), dated 1 December 1989;

	u.  Army Achievement Medal certificate, dated 8 February 2001;

	v.  Appointment Affidavits, dated 10 March 1991;
	w.  Standard Form (SF) 50 (Notification of Personnel Action), dated 13 March 1991;

	x.  Appointment Affidavits, dated 26 March 2000;

	y.  SF 50, dated 28 March 2000; and

	z.  NGB Form 22 (Report of Separation and Record of Service) for the period 1 June 1985 through 1 October 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’s records show he enlisted in the USAR on 22 July 1983 for a period of 6 years.  In so doing, he contracted himself to serve 3 years in a TPU followed by 3 years in the Individual Ready Reserve (IRR).  The TPU to which he was initially assigned was the 685th Transportation Company, Lake Station, Indiana.

3.  The applicant served on active duty for training (ADT) at Fort Leonard Wood, Missouri, from 18 October 1983 through 3 February 1984, during which time he was awarded military occupational specialty 63B (Power Generator and Wheeled Vehicle Mechanic).  Following completion of his ADT, he returned to his USAR TPU.

4.  In early 1985, the applicant moved his residence from Indiana to Florida and, on 16 March 1985, requested transfer from his USAR TPU in Indiana to a FLARNG unit, specifically Battery B, 2d Battalion, 116th Field Artillery, Dade City, Florida.  He made this request by completing a DA Form 4651 and DD Form 368.  The request was approved and he became a member of the FLARNG.

5.  On 19 August 2003, the applicant was issued his 20-Year Letter informing him of his eligibility for retired pay at age 60.

6.  At some point in time after qualifying for a non-regular retirement, the applicant moved back to Indiana and transferred to the Indiana Army National Guard (INARNG) and the 113th Engineer Battalion, Gary, Indiana.

7.  On 1 October 2006, the applicant was honorably discharged from the INARNG and transferred to the USAR Retired Reserve.  On 14 July 2024, he will become eligible to receive non-regular retired pay.

8.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and the procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 5 enumerates the process by which USAR Soldiers obtain a conditional release or final clearance in order to enlist or be appointed in the ARNG.  That process involves the completion of a DD Form 368 and DA Form 4651.

9.  Title 10, U.S. Code, section 3914, provides that an enlisted member of the Army who has at least 20, but less than 30 years of active service, may, upon his request, be retired.

10.  Title 10, U.S. Code, section 12731, provides that a member of the Active Reserves or National Guard is entitled, upon application, to retired pay if the person meets the following minimum requirements:  be at least 60 years of age; have performed at least 20 years of qualifying service computed under section 12732, Title 10, U.S. Code; have performed the last 8 years of qualifying service while a member of the Active Reserve; and not be entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes he was denied entitlement to an active duty military retirement and requests his records be corrected to show he was retired for length of service with a regular retirement.

2.  The applicant served in the Reserve components during his entire military career.  He was never a member of the Regular Army and he only served on active duty for 5 months and 16 days, the period of his ADT in 1983-1984.

3.  The applicant was a USAR Soldier.  He moved from Indiana to Florida and made an active effort to join the FLARNG.  He completed and signed a DA Form 4651 and DD Form 368, and he was released from his USAR TPU and enlisted in the FLARNG.

4.  The applicant served as a Soldier in the ARNG from 1985 to 2006.  He qualified for non-regular retirement at age 60.

5.  The applicant’s contention that he was somehow unjustly caused to lose his entitlement to an active duty military retirement is completely without merit.  The applicant was a career Reserve component Soldier; he only served 5 months of active duty service, falling some 19 1/2 years short of a regular retirement.

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

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)                                         AR20080012800





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ABCMR Record of Proceedings (cont)                                         AR20080012800



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