IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080017595 


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 U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states that he was discharged from the Individual Ready Reserve (IRR) component of the USAR after 29 years and 5 months.  He also states that his application to be transferred to the Retired Reserve was not received and the IRR discharged him after failing to receive his application.  He adds that he elected to be transferred to the Retired Reserve, but that action was not processed.  

3.  The applicant provides a copy of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) dated 12 September 1998, and a copy of Orders 
D-10-721265, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, on 3 October 2007, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was born on 11 July 1956.  He was appointed as a second lieutenant in the Rhode Island Army National Guard (RIARNG) and executed an oath of office on 22 May 1978.

2.  The applicant's records also show he served in various staff and command positions throughout his military career and was promoted to lieutenant colonel on 12 December 1996 and colonel on 5 May 2002.

3.  On 12 September 1998, Headquarters, Command Readiness Center, RIARNG, Cranston, RI, issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

4.  On 14 June 2005 and 19 May 2006, by letters, the Joint Forces Headquarters, RIARNG, notified the applicant that he was selected by the Calendar Years (CY) 2005 and 2006 Selective Retention Boards respectively.

5.  On 1 February 2007, by letter, the Joint Forces Headquarters, RIARNG, notified the applicant that he was not selected for retention by the CY 2007 Selective Retention Board and that he would be discharged from the Army National Guard and transferred to the USAR (IRR) accordingly.  He was also notified that if he did not wish to be transferred to the IRR, he must respond to the RIARNG Joint Forces Headquarters within 30 days of the date of this notification.

6.  There is no record that the applicant responded to the Joint Forces Headquarters, RIARNG, as instructed.

7.  On 9 February 2007, by letter, the Joint Forces Headquarters, RIARNG, notified the applicant that he was no longer eligible to remain in his dual-status military technician position as a result of the loss of his military membership in a compatible military position with his technician position.  He was also informed that failure to maintain a compatible military membership would result in his discharge from the RIARNG effective 1 April 2007.

8.  On 13 March 2007, the Joint Forces Headquarters, RIARNG, notified the applicant again that failure to maintain a compatible military membership would result in his discharge from the RIARNG effective 1 April 2007.

9.  There is no indication in the applicant's records that he responded to either notification.

10.  On 30 March 2007, Joint Forces Headquarters, RIARNG, published Orders 089-011, directing the applicant's honorable discharge from the RIARNG and transfer to the USAR Control Group (IRR) effective 1 April 2007.

11.  On 20 September 2007, HRC-St. Louis, MO, published Orders 
C-09-727060, directing the applicant's transfer from the USAR Control Group (Reinforcement) to the USAR (Inactive List), effective 20 September 2007, for failure to make a mandatory service obligation election.

12.  On 3 October 2007, HRC-St. Louis published Orders D-10-721265 directing the applicant's honorable discharge from the USAR effective 3 October 2007.

13.  The applicant's records do not show that he requested a transfer to the Retired Reserve.  The applicant will reach age 60 on 11 July 2016.

14.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in a Reserve Component was later amended to the last 6 years, and on 26 April 2005, was reduced to zero (0) years.

15.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It defines Ready Reserve Control Groups and the Selected Reserve.  For strength accountability purposes, the IRR consists of pre-trained individual Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or a national emergency declared by Congress.  One of the IRR control groups under the administrative jurisdiction of the Commander, HRC-St. Louis, is the USAR Control Group (Reinforcement).  Assignment in this category is authorized for a Soldier with or without a remaining statutory military service obligation under certain conditions.

16.  Chapter 7 of Army Regulation 140-10 relates to the removal of Soldiers from an 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.  In particular, paragraph 7-3.1 states that an officer (other than a commissioned warrant officer) or enlisted Soldier 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).  An officer (other than a commissioned warrant officer) or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date will be removed from active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his USAR discharge orders should be revoked and that he be assigned to the Retired Reserve.

2.  The evidence of record shows that the applicant was qualified for transfer to the Retired Reserve based on completion of 20 qualifying years of service for Reserve retirement.  However, there is no evidence in the available records and the applicant has not provided sufficient evidence to show that he requested transfer to the Retired Reserve. 

3.  The applicant was a field grade officer at the time he received his 20-year letter.  The applicant knew, or should have known, that a transfer to the Retired Reserve is not automatic and must be requested.  He did not do that.  There is no evidence in the available records and the applicant did not provide substantiating evidence to show he requested transfer to the Retired Reserve.

4.  In view of the foregoing and in the absence of an error or an injustice, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20080017595



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ABCMR Record of Proceedings (cont)                                         AR20080017595



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