IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20080018501 


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) on 11 April 1994 be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states, in effect, that he was misinformed regarding the consequences of being discharged as opposed to being in a Retired Reserve status when he reached age 60 in regard to his retired pay and other benefits.  He states that the reduction in his retired pay would cause a future hardship in his retirement years as he will not received retired pay based on longevity. 

3.  The applicant provides no additional documentation in support of 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 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 28 October 1949 and he enlisted in the USAR on 19 October 1968.  He continued to serve in the USAR through a series of continuous reenlistments.

3.  On 21 May 1990, the Army Reserve Personnel Center (ARPERCEN) notified the applicant (20-year letter) that he had completed the required years of service to be eligible for retired pay at age 60 (28 October 2009).  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.  On 11 April 1994, the applicant was honorably discharged from the USAR in the pay grade of E-7.  

5.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfer) 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 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. 

6.  Army Regulation 135-178 (Army National Guard and Army Reserve Separation of Enlisted Personnel) establishes the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a Soldier will not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge from the USAR on 11 April 1994 should be revoked and that he should be transferred to the Retired Reserve due to misinformation that he received regarding the consequences of electing to be discharged as opposed to electing to be transferred to the Retired Reserve.

2.  The applicant was issued a 20-year letter that very specifically addresses the fact that his eligibility for retired pay 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.  The applicant’s contentions regarding the reduction in retired pay and other benefits that he will receive as a result of being discharged have been considered.  However, there is no evidence of record and he provides no evidence to show he requested transfer to the Retired Reserve.  In addition, there is no evidence in the available records, nor has the applicant submitted any evidence, to show that he was misinformed regarding his discharge from the USAR.    

4.  The applicant is entitled to retired pay and retired benefits based on the date of his discharge from the USAR and in accordance with the applicable regulation. He has provided no evidence of error or fraud.

5.  In order to justify correction of a military record the applicant must show 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.

6.  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)                                         AR20080018501



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018501



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1