IN THE CASE OF:
BOARD DATE: 2 June 2009
DOCKET NUMBER: AR20090001820
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 records be corrected to show he was transferred to the Retired Reserve vice being discharged.
2. The applicant states, in effect, that his identification (ID) card lists him as a "former member" and he would like to change his status to Retired Reservist.
3. The applicant provides a copy of his September 2006 Notification of Eligibility for Retired Pay at Age 60 (20-year letter) and a copy of his January 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. Records available to the Board indicate the applicant was born on 25 April 1960. The DD Form 214 submitted with the applicants petition notes that he was ordered to active duty in support of Operation Iraqi Freedom on 25 October 2004 while a member of the United States Army Reserve (USAR) and was released from active duty on 15 December 2005.
2. On 14 March 2006, the applicant executed a 1-year extension of his August 1998 USAR enlistment contract thereby establishing his scheduled separation date from the USAR as 24 August 2006.
3. On 29 August 2006, in accordance with the expiration of his enlistment contract, the applicant was honorably discharged from the USAR. His discharge orders noted he was held beyond his normal discharge (24 August 2006) through no fault of his own. There is no evidence indicating the applicant ever requested transfer to the Retired Reserve in lieu of discharge.
4. In a letter dated 7 September 2006 (20-year letter) the applicant was notified that he had completed sufficient military service to be eligible to draw retired pay at age 60 in accordance with Title 10, U.S. Code, chapter 1223.
5. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 6-1, states that eligible Soldiers must request transfer to the Retired Reserve if they are entitled to receive retired pay from the Armed Forces because of prior military service or have completed a total of 20 years of active or inactive service in the Armed Forces.
6. Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Chapter 7 contains guidance on removal from active status and paragraph 7-1a indicates that Soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.
7. On 29 October 1999, a memorandum issued by the Under Secretary of Defense, states that former members of the Reserve Components who are eligible to receive retired pay at age 60 under Title 10, U.S. Code, section 12731, but who have terminated their Reserve status, are entitled to receive benefits provided for under Title 10, U.S. Code, chapter 54. ID cards reflecting the appropriate benefits have been available at Real-time Automated Personnel Identification System sites since December 1999. Reservists with more than 20 years of qualifying service for retirement at age 60 and who have terminated their Reserve status must simply take their 20-year letter to those facilities in order to obtain an ID card.
DISCUSSION AND CONCLUSIONS:
1. The applicants request that his USAR discharge be voided and that he be transferred to the Retired Reserve in order to change the status on his ID card was carefully considered. However, by regulation, members of the Reserve Component who are eligible to receive retired pay at age 60 have the option to be removed from an active Reserve status by either being discharged or transferred to the Retired Reserve. The applicant did not elect to be transferred to the Retired Reserve at the time of his separation.
2. The evidence of record in this case confirms the applicant was honorably discharged from the USAR on 29 August 2006. There is no indication that the applicant elected to be transferred to the Retired Reserve at the time of his discharge. As a result, absent any evidence that indicates he was not properly counseled on or given the option to transfer to the Retired Reserve at the time of his discharge, it must be presumed that his discharge was accomplished in accordance with the applicable law and regulation.
3. 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 this 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.
_________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.
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