IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20080019191 


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 discharge from the Retired Reserve effective 10 September 2008. 

2.  The applicant states, in effect, that he intended to separate from the United States Army Reserve (USAR) when he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) but due to numerous administrative errors by USAR personnel, he had to transfer to the Retired Reserve.  

3.  The applicant provides copies of his transfer orders, a self-authored letter to the 91st Division (Training Support), ARPC Forms 249-2-E (Chronological Statement of Retirement Points), DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), DD Form 4 (Enlistment/Reenlistment Document), his 20-Year Letter, and an unsigned and undated note from the Human Resources Command (HRC)-St. Louis, Missouri. 

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's military personnel record shows he initially enlisted in the Regular Army on 18 September 1980 for a 4-year period.  He completed basic combat and advanced individual training, and was awarded Military Occupational Specialty (MOS) 75D (Personnel Records Specialist).  

3.  On 17 September 1984, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued this date shows he completed 4 years of net active service.

4.  After a short break in service, the applicant enlisted in the Regular Army on 27 February 1985.  The applicant was honorably discharged on 29 September 1992.  The narrative reason noted on this DD Form 214 shows that he was separated under the provisions of the Voluntary Separation Incentive.  The DD Form 214 he was issued this date shows his net active service for this period of active duty was 7 years, 7 months, and 3 days and his prior active service was 4 years.

5.  On 30 September 1992, the applicant enlisted in the USAR for a 3-year period.  He successfully completed this enlistment period and reenlisted in the USAR for an additional 6-year period on 30 July 1995.

6.  Headquarters, 63rd Regional Support Command published Order 00-354-013 dated 19 December 2000 promoting the applicant to master sergeant/pay grade E-8 with an effective date of promotion of 31 December 2000.  This order provided additional instructions to the applicant stating that he had to serve at least 12 months in the duty position he was promoted into and meet the duty MOS qualifications or he could lose the promotion to master sergeant.  

7.  On 31 December 2000, the applicant was reassigned to Headquarters, 91st Division (Training Support) Dublin, California.  The reason for the involuntary reassignment was due to his selection for promotion to master sergeant/pay grade E-8.

8.  On 19 September 2001, the U.S. Army Reserve Personnel Command, St. Louis, Missouri, issued the applicant his 20-Year Letter.

9.  On 17 March 2002, the applicant reenlisted in the USAR for a 6-year period.  The DD Form 4 issued this date shows in Item 7 (Previous Military Service upon Enlistment/Reenlistment) total active military service 11 years, 7 months, and 3 days and his total inactive military service as 9 years, 11 months, and 9 days.  The remarks section of this reenlistment contract shows that he immediately reenlisted in a troop program unit within the USAR. 

10.  On 10 September 2003, Headquarters, 91st Division (Training Support), Dublin, California, published Orders 03-253-00003 reassigning the applicant to the Retired Reserve for he had completed 20 years of qualifying service for retired pay at age 60.  At the time of his transfer, he was a master sergeant pay grade/E-8. 

11.  In support of his application, the applicant submitted a copy of a letter that he forwarded first to HRC-St. Louis and then to Headquarters, 91st Division (Training Support).  In this self-authored letter, he states, in effect, that he intended to separate from the USAR when he received his 20-Year Letter.  He states that initially he was told that he did not have sufficient years to qualify for retirement by unit personnel.  He submitted for the Board's review a Chronological Statement of Retirement Points form dated 22 September 2000 which shows he had 16 years, 8 months, and 22 days of qualifying service for retirement.  

	a.  He continues in his self-authored letter that he provided required documentation to correct his Chronological Statement of Retirement Points to his unit personnel staff and on 21 September 2001 a new Chronological Statement of Retirement Points form was published.  This form shows he had 20 years, 1 month, and 13 days of qualifying service for retirement.   

	b.  The applicant states, in effect, that during the time period that he was seeking assistance and providing required documentation to correct his retirement point form, his contractual enlistment period would expire.  To ensure he did not have a lapse in his service record, he consulted with unit personnel and completed a second DA Form 4836 extending for 6 months on 10 February 2002.  (The first enlistment extension document is not available for the Board to review.)

	c.  During the March 2002 unit training assembly, the applicant was informed by unit personnel that he was not entitled to a second extension on his enlistment contract and it was recommended that he reenlist to ensure he completed 20 years of qualifying service for retirement.  The applicant states he reenlisted on 17 March 2002.

	d.  The applicant states that his 20-Year Letter was published but that he was promoted and established in his new unit with many missions to accomplish so he continued to serve.

	e.  At an unknown date, the applicant states he approached unit personnel stating he wanted to separate but was told that due to his reenlistment contract he had to transfer to the Retired Reserve.  He states he was transferred to the Retired Reserve and now his expiration of his term of service has expired and he is requesting discharge from the Retired Reserve. 

	f.  The applicant provided a note from a representative from HRC-St. Louis which told the applicant he had to contact his former unit for assistance with his request to be discharged from the Retired Reserve.  The representative stated she could not revoke the transfer to the Retired Reserve order and recommended the applicant seek assistance from the unit that initially published his transfer order. This note is not dated and it is not signed. 

	g.  On 21 July 2008, a master sergeant with the 91st Division (Training Support) stated that the Division no longer had operational control and directed that the applicant contact his former brigade or battalion administrative support personnel to have his transfer order revoked.

	h.  The applicant provided a copy of a USAR newsletter article which  highlighted the difference between a discharge from the USAR or transfer to the Retired Reserve.  The article pointed out the fact that a transfer to the Retired Reserve could potentially subject a retiree to involuntary recall to active duty in the event of a full mobilization.    

12.  Army Regulation 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  In pertinent part, Chapter 15 specifies that a Soldier retired under the provisions of Title 10 U.S. Code, section 3914 may be discharged from the USAR Retired Reserve at the Soldier's request and on completion of 30 years of active and inactive service.  This discharge does not affect the Soldier's Army of the United States status on the retired list.  Further it states a Soldier with a statutory military service obligation will not be discharged early until the completion of his or her statutory obligation. 

13.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Chapter 7 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.  


14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be discharged from the Retired Reserve due to his expiration of his term of service.  He states, in effect, that through a series of administrative errors by various unit personnel administrators he extended his enlistment, and then reenlisted to ensure his Chronological Statement of Retirement Points was accurate so he would receive his 20-Year Letter.  He contends he voluntarily transferred to the Retired Reserve because at the time he was under contract and could not separate.

2.  The evidence of record shows that the applicant was qualified for transfer to the Retired Reserve upon receipt of his 20-Year Letter.  A transfer to the Retired Reserve is a voluntary election which the Soldier must initiate with the support of unit personnel and endorsed by the unit commander when a Soldier chooses to be removed from an active status in the USAR and when under a contractual enlistment obligation.  

3.  At the time of the applicant's transfer to the Retired Reserve, he had a contractual obligation to remain in an active status in the USAR.  Therefore, he was not eligible for separation or discharge from the USAR.  As the applicant could not be separated or discharged from the USAR, he voluntarily elected transfer to the Retired Reserve, which was the only option available to him, upon receipt of his 20-Year Letter.  Therefore, the applicant's order transferring him to the Retired Reserve was properly executed.  

4.  Unfortunately, there are no provisions to discharge individuals assigned to the Retired Reserve at the expiration of their term of service.  However, upon the completion of 30 years of active and inactive service, the applicant can request discharge from the Retired Reserve under the provisions of Chapter 15, Army Regulation 135-178. 






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)                                         AR20080019191





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ABCMR Record of Proceedings (cont)                                         AR20080019191



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