IN THE CASE OF:
BOARD DATE: 12 February 2009
DOCKET NUMBER: AR20080013020
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, correction of his records to show he was transferred to the Retired Reserve.
2. The applicant states he spent 21 years in the service and was released from active duty instead of being put in the Retired Reserve. Consequently, he cannot get an identification card and use his benefits.
3. The applicant provides no additional documents in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 2 December 1958. After having active and inactive service in the United States Navy, he enlisted in the Army National Guard on 10 April 1995. He was promoted to sergeant, E-5 on 9 May 1997 in military occupational specialty 51B2O (carpentry and masonry specialist). He was discharged from the Army National Guard and as a Reserve of the Army on 24 August 1997.
2. On 25 August 1997, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of six years. He was ordered to active duty in an Active Guard Reserve (AGR) status on 17 October 1999.
3. On 28 October 2003, the applicant reenlisted in the USAR in an AGR status for a period of three years.
4. On 7 September 2006, the applicant submitted a DA Form 4187 (Personnel Action) to be discharged from the AGR program at his expiration of term of service (ETS). This Personnel Action shows his ETS date as 27 October 2006.
5. Department of the Army, U.S. Army Human Resources Command, St. Louis, MO, Orders D-11-690201, dated 2 November 2006, discharged the applicant from the USAR AGR program on 1 December 2006.
6. His Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) is dated 3 July 2008.
7. During the processing of this case, a staff advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis, MO. The opinion pointed out that the applicant's Personnel Action, dated 7 September 2006, did not indicate he wished to be released from active duty and transferred to the Retired Reserve. The applicant requested ETS from the AGR program. At the time of his request for separation and his ETS, he did not have a contractual reserve obligation; therefore, he was discharged from the Army. The opinion stated that it cannot be determined if the applicant was aware that his request had to be specific; therefore, it was recommended that the Board approve the applicant's petition to be transferred to the Retired Reserve.
8. A copy of the advisory opinion was forwarded to the applicant for his information and possible comment. On 15 January 2009, the applicant concurred with the advisory opinion rendered in his case.
9. His Chronological Statement of Retirement Points, dated 29 January 2009, shows he completed 21 years, 3 months, and 14 days of qualifying service for retired pay at age 60.
10. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning and transferring USAR Soldiers. In pertinent part, it states that assignment to the Retired Reserve is authorized in a number of circumstances but an eligible Soldier must request transfer.
DISCUSSION AND CONCLUSIONS:
1. In September 2006, the applicant submitted a written request to be discharged from the USAR AGR at his ETS. It appears that he did not request transfer to the Retired Reserve at that time. As a result, orders were published which discharged him from the USAR AGR program on 1 December 2006, two months after his actual ETS date of 27 October 2006.
2. Based on the advisory opinion from the U.S. Army Human Resources Command, St. Louis, MO, the applicant may not have known that his request had to be specific in nature (i.e. transfer to the Retired Reserve).
3. The evidence of record shows the applicant completed 21 years of qualifying service for retired pay at age 60 at the time of his discharge.
4. The applicant will not be eligible for retired pay for another 9 years. Any reasonable doubt concerning his intention to transfer to the Retired Reserve should be resolved in his favor as it would be in the Government's interest to transfer him to the Retired Reserve where he could be a mobilization asset for a reasonable length of time. Therefore, it would be appropriate as a matter of equity to void the applicants discharge of 1 December 2006 and correct his records to show he was transferred to the Retired Reserve.
BOARD VOTE:
___x____ ____x____ ___x_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected:
a. by revoking Department of the Army, U.S. Army Human Resources Command-St. Louis, Orders D-11-690201, dated 2 November 2006; and
b. by publishing orders assigning him to the Retired Reserve effective 1 December 2006.
_______ _ 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.
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