IN THE CASE OF:
BOARD DATE: 21 APRIL 2009
DOCKET NUMBER: AR20080018846
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 records be corrected to show that he was transferred to the Retired Reserve.
2. The applicant states that he has completed his 20-year obligation and received a 20-year letter.
3. The applicant provides a copy of 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 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 applicants record shows that he originally enlisted in the Regular Army on 8 February 1982. He served 9 years, 2 months, and 27 days and was honorably discharged on 29 April 1991.
3. On 20 December 1991, the applicant enlisted in the United States Army Reserve (USAR) and remained in the Reserve through subsequent reenlistments and/or extensions.
4. On 15 November 1998, the applicant executed his last reenlistment for
6 years in the USAR, thereby establishing a separation date of 14 November 2004. There are no other contracts or extensions listed in the applicant's Official Military Personnel File.
5. A memorandum, dated 21 January 2004, notified the applicant of his eligibility for retired pay at age 60.
6. Orders 05-014-00050, dated 14 January 2005, discharged the applicant from the USAR effective 13 February 2005. The orders stated that the applicant was held beyond his normal discharge date through no fault of his own.
7. 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 RC has since been amended to the last 6 years, and on 26 April 2005, this requirement was reduced to zero (0) years.
8. The same regulation further states, in pertinent part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.
9. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Chapter 7 of the regulation 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant has provided no evidence to show that he requested to be transferred to the Retired Reserve. Therefore, in the absence of documentation indicating the applicants desire, the presumption of regularity must apply.
2. 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 that 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) AR20080018846
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