IN THE CASE OF:	  

		BOARD DATE:	       3 March 2009

		DOCKET NUMBER:  AR20080017759 


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 discharge from the U.S. Army Reserve (USAR) be voided and his records corrected to show he transferred to the Retired Reserve.

2.  The applicant states that after receiving his orders transferring him to the USAR Control Group (Reinforcement), he had no reason to believe he would be discharged.  He served for 24 years and 11 months and does not want to lose that time because of an error that was not his fault.  He has always had good attendance and did extra duty whenever called upon.

3.  The applicant provides, in support of his application, copies of his orders dated 9 January 2001 reassigning him to the USAR Control Group (Reinforcement) and his Notification of Eligibility for Retired Pay at Age 60 
(20-Year Letter).

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 2 October 1949.  The applicant served in the Regular Army from 18 September 1969 to 2 September 1971.  The applicant was assigned to the USAR Control Group (Annual Training) from 3 September 1971 to 17 September 1975.  He had no active service during this period.

3.  On 29 August 1979, the applicant enlisted in the USAR.  He served with the 347th General Hospital until 4 April 1995.  At that time he was transferred to Headquarters and Headquarters Company, 91st Division (Exercise), where he served until 30 June 1998.  On 1 July 1998 the applicant was assigned to the 6th Battalion, 104th Regiment, 4th Brigade, 104th Division (Institutional Training).

4.  The applicant’s 20-year letter is dated 30 October 1996.  Paragraph 3 of this letter reminded him that since he had completed 20 years of qualifying service he must earn a minimum of 50 points each retirement year to retain an active status.

5.  The applicant transferred from a troop program unit to the USAR Control Group (Reinforcement) effective 4 December 2000.

6.  Orders D-01-202380, USAR Personnel Command, dated 23 January 2002, discharged the applicant from the USAR in the rank of sergeant first class, pay grade E-7, effective 23 January 2002.

7.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, removing, and transferring USAR Soldiers.  In pertinent part, it states an officer or enlisted Soldier who has accrued 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the USAR.  If a Soldier does not earn the required 50 retirement points during a retirement year and the Soldier does not request a one-time waiver, the Soldier may request discharge or transfer to the Retired Reserve.

8.  Section 12731(d) of Title 10, U.S. Code, states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within 1 year after the person completes that service.  Section 12738(a) states after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was discharged from the USAR in error.

2.  The available evidence clearly shows that the applicant completed more than 20 years of qualifying service and is eligible for retired pay at age 60.

3.  There is no evidence showing that the applicant had earned the required minimum of 50 points per year to maintain an active status.  Furthermore, there is no evidence showing that the applicant requested to be transferred to the Retired Reserve.  Therefore, it appears that he was accordingly discharged from the USAR.

4.  The regulations governing the Board’s operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

5.  The applicant attains 60 years of age on 2 October 2009 and is fully eligible for retired pay at that 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 the aforementioned requirement.

7.  In view of the foregoing, 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)                                         AR20080017759



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ABCMR Record of Proceedings (cont)                                         AR20080017759



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