IN THE CASE OF:	

		BOARD DATE:	25 August 2009    

		DOCKET NUMBER:  AR20080016121 


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 records be corrected to show that he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) effective 11 July 1992 and that he be credited with the appropriate retirement points from that date.

2.  The applicant states that in March 1992, he requested a transfer to the Individual Ready Reserve (IRR) due to a conflict between his civilian work and his military duties.  He goes on to state that he was a sergeant first class/E-7 with more than 20 good years so he knew he was eligible for retirement and could go into IRR "retired status."  He continues by stating that because of his civilian job he could not perform effectively as a senior noncommissioned officer (NCO) in the Reserve, but he knew he could still serve, and with considerable institutional knowledge from his years with the Army, he wanted to maintain a relationship with "Mother Army" so that if he was needed in the future he could make himself available.  Plus he knew by remaining in the [Retired Reserve] that his pension would increase.  He further states that after leaving the inactive Reserve in 1992, he trusted that all of his paperwork had been properly communicated; however, he later discovered that instead of being transferred to the [Retired Reserve], he was transferred to the IRR and was later discharged in 1995 without any notice.  Accordingly, his records should be corrected to show that he was transferred to the USAR Control Group (Retired) effective 11 July 1992 and that he be credited with retirement points from that date.

3.  The applicant provides a two-page affidavit explaining his application, a copy of a request dated 12 April 1992 requesting transfer to the IRR due to a conflict in his work schedule, a copy of his reassignment orders to the USAR Control Group (Reinforcement) [IRR], a copy of his ARPC Form 249-2-E (Chronological Statement of Retirement Points), a copy of his 20-year letter, an affidavit from a former administrative supply technician, a letter from his counsel, a letter from the Human Resources Command-St. Louis (HRC-STL) Inspector General (IG), and a copy of an article from the 2005/2006 Army Reserve Almanac explaining the difference in pay between members transferred to the Retired Reserve and those being discharged.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be granted retirement points credit for service in the IRR until his retirement.  He also requests that the applicant be allowed to appear before the Board.

2.  Counsel states, in effect, that the applicant was led to believe that he would be reassigned to the IRR in a retired status that would accrue retirement points.  However, he was placed in the IRR "Reinforcement" without his knowledge and has been unjustly denied retirement points credit that he should have accrued.

3.  Counsel provides a two-page letter explaining this position.

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 21 August 1949 and he enlisted in the USAR on 1 May 1969 for a period of 6 years.  He completed his training and continued to serve in a Reserve Component status.  

3.  On 16 May 1990, the applicant submitted a request to be transferred from his troop program unit (TPU) to the IRR due to personal reasons and changing employment opportunities that required him to relocate out of State.  His chain of command recommended approval of his request and it was approved on 7 July 1990.  Orders 110-35 were published on 27 July 1990 assigning him to the USAR Control Group (Reinforcement) due to employment conflict.

4.  On 27 December 1991, the applicant reenlisted for a period of 3 years and assignment to a TPU.  On 13 January 1992, Orders C-01-200754 assigned him to a TPU effective 27 December 1991.

5.  On 11 July 1992, Orders 71-16 were published transferring him to the USAR Control Group (Reinforcement) [IRR] by reason of "IRR No-Show" indicating he had not complied with his TPU assignment orders.

6.  On 12 December 1995, the applicant was honorably discharged from the USAR due to the expiration of his term of service (ETS).

7.  In July 2006, the applicant initiated action through a unit administrator to correct his retirement points.  He submitted additional documents to HRC-STL to update his retirement points.

8.  On 25 September 2006, the applicant was issued a 20-year letter which indicates that he had 20 qualifying years of service for retirement.  The accompanying ARPC Form 249-2-E dated 11 September 2006 indicates that his last qualifying year of service was during the retirement year ending 15 October 1990.

9.  On 21 November 2006, the applicant contacted HRC-STL officials regarding a change to his current status.  He was advised to apply to this Board and was given the website and information on downloading a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552).

10.  On 19 June 2007, he contacted HRC-STL officials to inquire if his being discharged would affect his pay.  He was informed that it would and he stated that he desired to be transferred to the Retired Reserve.  He also stated that he had a copy of his original request to his former unit.

11.  On 21 August 2009, he was placed on the Retired List in the pay grade of 
E-7 due to having reached the age of 60.

12.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.  


It provides, in pertinent part, that the USAR is a Federal force which is comprised of the Ready Reserve, the Standby Reserve, and the Retired Reserve.

13.  The Retired Reserve consists of Soldiers who retain their status as Reserves of the Army and who are or have been removed from an active status, or have been assigned at their requests and are otherwise qualified.

14.  The Reserve Control Group (Standby) consists of Standby Reserve Soldiers on the inactive list who qualify for assignment.  These Soldiers are not authorized Reserve duty training, retirement point credit, or promotion consideration.

15.  The Ready Reserve Control Group consists of non-unit Ready Reserve Soldiers with a training obligation and must take part in annual training when so directed.  The Ready Reserve Control Group is comprised of Annual Training, Individual Mobilization Augmentees, Reinforcement, Active Guard Reserve, Reserve Officers' Training Corps, and other various groups.

16.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of that regulation relates to the removal of Soldiers from active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

17.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 1-30 states, in pertinent part, that orders discharging a Soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he requested to be transferred to the Retired Reserve Control Group has been noted.  However, the applicant's original request of 16 May 1990 is filed in his official records and it very clearly indicates that he requested to be transferred to the IRR.  A review of his official records fails to show that the applicant ever requested or suggested that he desired to be transferred to the Retired Reserve.  Accordingly, he was transferred to the USAR Control Group (Reinforcement) [IRR] on 27 July 1990.

2.  On 27 December 1991, he reenlisted and requested assignment to a TPU.  However, it appears that he was deemed a no-show and was transferred to the USAR Control Group (Reinforcement) [IRR] until such as time as he was discharged due to ETS.

3.  It is also noted that it was not until the applicant contacted officials at 
HRC-STL and provided the necessary documents in 2006, that it was determined that he had 20 qualifying years of service for retirement and was issued a 
20-year letter.

5.  Therefore, inasmuch as the applicant has provided no evidence to show that he requested transfer to the Retired Reserve, it must be presumed that his discharge was accomplished in accordance with the applicable regulations based on the circumstances at the time.

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:

1.  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.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20080016121



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ABCMR Record of Proceedings (cont)                                         AR20080016121



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