IN THE CASE OF:	  

		BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20080017421 


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 that his assignment to the United States Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)) be voided and that he be retroactively assigned to the Retired Reserve.

2.  The applicant states, in effect, that an administrative error resulted in his assignment to the USAR Control Group (IRR) rather than the Retired Reserve.  The applicant also states that as a result of this error, he has not earned cost of living allowance (COLA) increases [properly known as longevity pay increases] to which he would have been entitled as a member of the Retired Reserve.  The applicant continues that he did not discover this error until he applied for retire-ment on 9 September 2008.  He concludes that this administrative error needs to be rectified in order for him to be eligible for the full benefits that he has earned.

3.  The applicant provides a self-authored statement in support of this request.

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 6 September 1948.  The applicant participated in the Delayed Entry Program during the period of 12 May 1969 through 2 June 1969.  He enlisted in the Regular Navy and served on active duty from 3 June 1969 until 7 March 1973, then he was transferred to the U.S. Navy Reserve until 11 May 1975.

3.  On 27 October 1976, the applicant enlisted in the Army National Guard (ARNG) and served until 26 October 1977.  On 28 October 1977, he was appointed as a second lieutenant in the Army Nurse Corps of the USAR and was immediately ordered to active duty on 2 November 1977 where he served until 21 June 1985.  The applicant was assigned to the USAR Control Group (Reinforcement) during the period 22 June 1985 through 15 July 1985.  On       16 July 1985, the applicant once again became a member of the ARNG.

4.  State of Utah, Utah National Guard, letter, dated 11 August 1993, shows the Director of Personnel and Community Activities for the Utah ARNG notified the applicant that he had completed the required years of service and that he would be eligible for retired pay upon reaching age 60.

5.  Throughout his career, the applicant advanced through the ranks culminating when he was promoted to the rank of lieutenant colonel (O-5) on 1 November 1994.

6.  Headquarters, Utah National Guard, Office of the Adjutant General, Draper, Utah, Orders 033-040, dated 26 February 1996, separated the applicant from the ARNG effective 1 February 1996 and transferred him to the USAR Control Group (Reinforcement) with further assignment to the 328th Combat Support Hospital located in Salt Lake City, Utah.

7.  Headquarters, 104th Division (Institutional Training), Vancouver, Washington, Orders 97-309-003, dated 5 November 1997, show the applicant's nonselection for retention resulted in his mandatory reassignment to the USAR Control Group (Reinforcement-IRR) effective 15 August 1997.

8.  U.S. Total Army Personnel Command, St. Louis, Missouri, memorandum, dated 22 November 1999, shows the Chief of the Office of Promotions for the Reserve Components notified the applicant that a Department of the Army Reserve Components Selection Board was convened to consider officers in his grade for promotion.  He also informed the applicant that he had been considered but was not among those who were selected for promotion.

9.  U.S. Army Reserve Personnel Command, St. Louis, Missouri, Orders 
D-05-026717, dated 15 May 2000, honorably discharged the applicant from the USAR effective 15 May 2000.  Accordingly, these orders directed the applicant to return his DD Form 2A (Red) (U.S. Armed Forces Identification Card - Reserves) to the orders issuing command and also terminated all Reserve of the Army and Army of the United States appointments that the applicant may have possessed. These orders also informed the applicant that since he no longer had any military status, his records would no longer be held by the Army and his Official Military Personnel File would be transferred to the National Personnel Records Center located in St. Louis, Missouri.

10.  U.S. Army Reserve Personnel Command, Chronological Statement of Retirement points, dated 24 November 2008, shows the applicant did not attain 50 qualifying points annually for retirement during the period of 22 June 1997 to 15 May 2000.

11.  The applicant's record is void of any evidence, and he has failed to provide any evidence, that shows he requested assignment to the Retired Reserve.

12.  In the processing of this application an advisory opinion, dated 14 July 2009, was obtained from the Deputy Chief of Staff, G-1 (Personnel) of Headquarters, U.S. Army Reserve Command, Fort McPherson, Georgia.  On 30 July 2009, the applicant was provided a copy of the advisory opinion and afforded an oppor- tunity to provide a rebuttal.  The applicant failed to respond to the advisory opinion.  The Army Reserve recommended disapproval of the applicant's request based on the following reasons:

	a.  The applicant was transferred to the IRR on 5 November 1997 with an effective date of 15 August 1997.  The orders indicate the transfer was due to nonselection by a Selective Retention Board.  Based on his nonselection for retention, the applicant would have been given three options per paragraph 10-8 of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers):  transfer to the IRR; transfer to the Retired Reserve; or discharge.  At the time of his nonselection, he had approximately 11 years until his Mandatory Removal Date; therefore, he would have been able to earn more retirement points as a member of the IRR.  As a member of the Retired Reserve, he would no longer be eligible to earn additional retirement points.

	b.  Since these events occurred over 10 years ago, there are no records available to substantiate or refute the applicant's claim he was not properly counseled regarding the ramifications of reassignment to the IRR versus the Retired Reserve.  However, as a senior officer with over 20 qualifying years of service, if he was not properly counseled and was unsure of the ramifications of his choice; there were resources available to him for an explanation, if requested.

	c.  As he elected transfer to the IRR, he would not have been counseled regarding the ramification of later being discharged after transferring to the IRR.  The ramification of being discharged from the IRR would not have come into play until the applicant was discharged on 15 May 2000 for failure to obtain sufficient points for retention per paragraph 4-4a(6) of Army Regulation 135-175 (Separation of Officers).

	d.  According to the U.S. Human Resources Command, St. Louis, Missouri, members of the IRR who have 20 or more qualifying years of service who are being processed for separation for nonparticipation are notified of the pending separation and given the options:  remain in the IRR and begin earning retirement points; transfer to the Retired Reserve; or discharge.

13.  Paragraph 3-6 of Army Regulation 135-91 (Army National Guard and Army Reserve - Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) provides that an ARNG or USAR officer (other than a commissioned warrant officer) who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).

14.  Army Regulation 140-10 sets 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 an active status and states, in pertinent part, that an officer (other than a commissioned warrant officer) who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  This regulation also states 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.

15.  Paragraph 4-4 of Army Regulation 135-175 (Army National Guard and Army Reserve - Separation of Officers) provides for removal of an officer from an active status.  It states, in pertinent part, that members of the Army Reserve will be removed from an active status for any of 18 reasons listed, with or without the officer's consent regardless of the length of commissioned service.  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive).
16.  Department of the Army Pamphlet 600-3 (Commissioned Officer Profes-sional Development and Career Management) is intended to be a professional development guide for individual officers of the U.S. Army.  Chapter 7 of this publication provides guidance to individuals, commanders, and personnel managers for the professional development of all USAR officers not on extended duty.  In pertinent part, it states that the most important element in officer pro-fessional development is the individual and each officer must actively participate in his own professional development.  The most critical factor in an officer's professional development is his or her individual participation or lack thereof.  Although there are statutory and regulatory requirements for participation, the USAR remains a volunteer organization.

17.  Title 10, U.S. Code, provides that at any time the Secretary of the Military Department may order regular or Reserve 20 year active duty retirees to active duty without their consent in the interest of national defense.  In time of war or national emergency declared by congress, the respective Secretary may recall any other retired members of the Reserve Components, with approval of the Secretary of Defense, when it is determined there are insufficient qualified Reservists in an active status or in the Inactive National Guard.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his assignment to the IRR should be voided and that he should be retroactively assigned to the Retired Reserve.

2.  Evidence shows the applicant's nonselection for retention resulted in his mandatory reassignment to the IRR effective 15 August 1997.

3.  Regulatory guidance is clear that an officer who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status.  An officer who fails to do so by the anniversary of his or her retirement year ending (RYE) date will be removed from an active status and discharged, transferred to the Retired Reserve (if eligible and requested by the member) or, if eligible, transferred to Control Group (Inactive).  The applicant's record is void of any evidence, and he has failed to provide any evidence, that he requested to be assigned to the Retired Reserve.

4.  As a senior commissioned officer with over 20 years of qualifying service for retired pay, it was the applicant’s responsibility to know what was required for him to remain in an active status.
5.  At the time of his discharge, the applicant had sufficient retirement points to qualify for retired pay at age 60.  The applicant had a duty to inquire of the U.S. Army in 2000 when he received his honorable discharge orders if he believed they were issued in error.

6.  Had the applicant requested and been subsequently assigned to the Retired Reserve, he would have been subject to recall to active duty without his consent in the interest of national defense.  Following his discharge, the applicant was no longer under military control and did not have to be concerned with the possibility of being involuntarily recalled to active duty.

7.  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.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20080017421



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ABCMR Record of Proceedings (cont)                                         AR20080017421



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