IN THE CASE OF:	  

		BOARD DATE:	       21 January 2009

		DOCKET NUMBER:  AR20080015859 


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 his 25 September 2001 discharge be voided and he be shown to have been transferred to the Retired Reserve. 

2.  The applicant states, in effect, that he was not properly counseled as to his options and requirements at the time of his discharge.  He is not sure of the reason he was discharged and not transferred to the Retired Reserve.  He told the Reserve unit personnel that he would be retiring but was not afforded a retirement review.  He was under the impression that as long as he had a Notification of Eligibility for Retired Pay at Age 60 Memorandum (commonly called a 20-Year Letter) that was all he needed to enforce his retirement.  He did not discover the error until he attempted to obtain a Retired Reserve Identification Card (in 2008).

3.  The applicant provides a 20-Year Letter, dated 7 February 2001; and Headquarters, 88th Regional Support Command (RSC), Fort Snelling, Minnesota Orders 01-268-046, dated 25 September 2001.

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 enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program on 6 January 1978.

3.  He entered active duty on 1 February 1978 and served continuously until 12 May 1989 for a period of 11 years, 3 months, and 12 days.

4.  With his release from active duty the applicant transferred to a USAR Troop Program Unit (TPU) and had continuous active USAR TPU service until completion of his final period of enlistment. 

5.  The applicant's last reenlistment was for 3 years commencing on 19 April 1998.  The DD Form 4 (Enlistment/Reenlistment Document) shows 12 years, 1 month, and 20 days of inactive service.

6.  On 7 February 2001, the applicant received a Notification of Eligibility for Retired Pay at Age 60.  [The applicant will attain age 60 on 8 May 2018.]  Included on this form is the information and election information for participation in the Survivor Benefits Plan (SBP).  No SBP election form is in the applicant's integrated Personnel Electronic Records Management System (iPERMS) record.

7.  The iPERMS record also does not contain a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) or other document accounting for the applicant's continuance in the TPU beyond his ETS (expiration of term of service) date of 18 April 2001.  

8.  Headquarters, 88th RSC Orders 01-268-046 honorably discharged the applicant from the USAR.

9.  A review of the iPERMS records, transactions section, shows that on 23 September 2008, the applicant's file was updated to show his status as a "Former Member."


10.  The ARPC Form 249-E (Chronological Statement of Retirement Points) utilized to determine eligibility for issuance of the 20-Year Letter appears to have been incorrectly completed resulting in a showing of three non-qualifying years 
which resulted in a two-year delay in issuance of his eligibility letter.  The electronic ARPC Form 249-E was corrected on 9 January 2009 to show only one non-qualifying year during his entire period of military service. 

11.  Title 10, U.S. Code, section 1331(d) states that each Reserve components Soldier who completes the required service to be eligible for retired pay at age 60, is to be notified in writing within 1 year after he or she has completed that service.

12.  Army Regulation 140-30 (Active Duty in Support of the United States Army Reserve (USAR) and Active Guard Reserve (AGR) Management Program) Soldiers removed from active status, who have completed at least 20 years of active and/or inactive service in the U.S. Armed Forces, will be discharged or transferred to the Retired Reserve.  Assignment to the Retired Reserve is authorized for eligible Soldiers is voluntary based on the Soldier's request. 

13.  Army Regulation 600-8-14 (Identification Cards For Members Of The Uniformed Services) states, in pertinent part, that a DD Form 2 (Reserve Retired) will be issued to members entitled to retired pay at age 60 who have not yet attained age 60.  For former members (discharged) entitled to retired pay at age 60 who have not yet attained age 60, the status “Former Member” will be reflected above the service shield.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no documentation to support his contention that he was not properly counseled on his options and procedures at the time of his discharge.

2.  For a Soldier who is qualified for retirement at the time they reach their ETS, transfer to the Retired Reserve is a voluntary action that must be initiated by the Soldier.  It is not an automatic consideration.

3.  To void the applicant's discharge would in effect grant him the same benefits and privileges as those Soldiers voluntarily transferred to the Retired Reserve and were subject to recall or mobilization during a period of significant activation of Reserve personnel.
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)                                         AR20080015859



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ABCMR Record of Proceedings (cont)                                         AR20080015859



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