IN THE CASE OF:
BOARD DATE: 26 MARCH 2009
DOCKET NUMBER: AR20080018392
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 United States Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve.
2. The applicant states that he desires to have his discharge from the USAR voided and to be transferred to the Retired Reserve because the discharge prevents him from applying for Retired Pay at age 60.
3. The applicant provides no additional documents with his application.
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 applicants 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 applicants 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 8 November 1954, was commissioned in Puerto Rico as an USAR second lieutenant on 11 January 1978, and he served in troop program units in Puerto Rico throughout his career. He was promoted to the rank of major on 8 January 1992.
3. On 11 February 1999, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). The notification informed the applicant that his eligibility for Retired Pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation.
4. Although the orders discharging the applicant are not present in the available records, it appears that, on 7 July 2000, the applicant was honorably discharged from the USAR due to non-selection for promotion to the rank of lieutenant colonel.
5. There is no evidence in the available records to show the applicant requested a transfer to the Retired Reserve in lieu of discharge.
6. Army Regulation 135-155 provides, in pertinent part, that USAR and Army National Guard officers serving in the ranks of first lieutenant, captain and major, who have completed their statutory service obligation, will be discharged for failure to be selected for promotion after second consideration by a Department of the Army Reserve Components Selection Board. An officer who is removed from active status due to nonselection for promotion will be discharged if he or she is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date he or she is being removed from active status.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants discharge was accomplished in accordance with law and regulations applicable at the time.
2. The applicant's contention that his discharge from the USAR deprives him of the opportunity to apply for Retired Pay at age 60 has been noted and found to lack merit. The applicant was issued a 20-year letter that very specifically addresses the fact that his eligibility cannot be denied or revoked unless it was obtained through fraud or misrepresentation. Accordingly, his discharge orders do not interfere with his receipt of Retired Pay and there appears to be no basis to revoke his discharge orders.
3. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that 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.
_______ _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) AR20080018392
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ABCMR Record of Proceedings (cont) AR20080018392
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