IN THE CASE OF:	  

		BOARD DATE:	        22 January 2009

		DOCKET NUMBER:  AR20080017488 


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 27 January 1997 discharge from the U.S. Army Reserve (USAR) be voided and that he be transferred to the USAR Control Group (Retired Reserve) effective 27 January 1997.

2.  The applicant states, in effect, this action would facilitate his military retirement benefits.

3.  The applicant provides:

	a.  a copy of his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 25 February 1994.

	b.  a copy of Orders D-01-706537, USAR Personnel Center, St. Louis, MO, dated 27 January 1997.  This order discharged the applicant from the USAR.

	c.  a copy of an electronic mail (email) message from the Career Manager, Army Medical Department (AMEDD) Medical Team, U.S. Army Human Resources Command, St. Louis, MO, dated 14 May 2008.  This email informs the applicant that, back in 1997, HRC (then U.S. Army Reserve Personnel Center) routinely discharged Reservists who, when notified of their eligibility for retired pay, failed to elect a service option.  The email states that today, Human Resource Command's practice is to transfer such Reservists to the Retired Reserve if they have qualifying years.


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 18 January 1950.  With 2 years’ prior enlisted service in the Army National Guard (ARNG), he was commissioned and served in the Regular Army for 3 years from 9 July 1974 through 8 July 1977.  Upon his release from active duty, he joined the USAR.

3.  On or about 25 February 1994, the applicant received his “Twenty Year Letter” signifying his entitlement to retired pay upon reaching 60 years of age.  

4.  Once Reservists reach 20 or more qualifying years of service, they have three options:

	a.  Remain in the Ready Reserve – If qualified and able to stay in an active drill status, a Reservist can continue to drill for pay and points.  Accumulating more points will raise total retirement pay, increase the possibility for promotion and boost total time in service for the purpose of longevity pay raises.

	b.  Transfer to the Retired Reserve – By requesting transfer to the Retired Reserve, a member enters a status in which retirement points no longer can be accumulated.  Time in the Retired Reserve counts toward longevity service for retired pay.  In the event of full mobilization, retired Reservists can be recalled to active duty.  Such a recall would allow reservists to accumulate more points for retirement.  While in the Retired Reserve, members have the same rights and entitlements that they had as drilling Reservists.

	c.  Request discharge from the Reserve components – By doing this, retired Reservists are no longer subject to any kind of recall or mobilization.  From their time of discharge until they start collecting benefits at age 60, however, they will be unable to increase their benefits in any way.

5.  On 27 January 1997, the applicant was discharged from the USAR as a Lieutenant Colonel, Medical Services Corps.  It is unknown whether the applicant requested discharge, or whether he was discharged by default for failing to elect an option upon receiving his Twenty Year Letter.

6.  Army Regulation 135-180 (Qualifying Service for Retirement Pay Non-regular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.

7.  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 transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer.

8.  Chapter 6 of Army Regulation 140-10 stipulates, in relevant part, that eligible Soldiers must request assignment to the Retired Reserve provided they have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  The qualifying Soldier must then complete a DA Form 2651 (Request for Reserve Component Assignment or Attachment) requesting either transfer to the Retired Reserve or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants to void a discharge order dated 27 January 1997 and replace it with a transfer to the Retired Reserve on the same date.

2.  In 1997, the applicant was a 47-year old USAR Lieutenant Colonel.  Discharge orders were issued to him on 27 January 1997.  These orders protected him from any kind of future recall or mobilization action.  They also had the effect of freezing his future retired pay at the 1997 pay rate.

3.  Had the applicant been reassigned to the Retired Reserve on 27 January 1997, his time in the Retired Reserve from then to now would count toward longevity service for retired pay; however, he would have remained subject to possible mobilization and recall to active duty.  

4.  Election of discharge versus transfer to the Retired Reserve is an “either or” proposition; each choice carries certain benefits and certain drawbacks.  From 1997 to present, the applicant benefited from his discharge by being ineligible for recall to active duty, but at the cost of a reduced retirement annuity.  Now, since he is 58 years old and less likely to be recalled in any event, he seeks to change his original decision in order to have his retired pay computed using rates which will be in effect in 2010.
5.  The U.S. Army Human Resources Command, St. Louis, MO, website does not provide information to the effect that non-election of a retirement option will automatically result in transfer to the Retired Reserve.

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)                                         AR20080017488



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ABCMR Record of Proceedings (cont)                                         AR20080017488



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