IN THE CASE OF:
BOARD DATE: 23 JULY 2009
DOCKET NUMBER: AR20090003174
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 her records be corrected to show that she was not transferred to the Retired Reserve.
2. The applicant states that she transferred from her Army National Guard (ARNG) unit to the Individual Ready Reserve (IRR). She believed that she was still assigned to the IRR until she attempted to get assigned to another Reserve unit. The applicant adds that she believes her transfer to the Retired Reserve is in error since she did not have enough qualifying service for retired pay to be eligible for such a transfer.
3. The applicant provides her DD Form 214 (Report of Separation from Active Duty), her NGB Form 22 (Report of Separation and Record of Service), her orders transferring her from the ARNG to the IRR, and her ARPC Form 249-E (Chronological Statement of Retirement Points) which shows that she had 12 years of qualifying service.
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's military records show that she enlisted in the Regular Army on 5 December 1975, was promoted to pay grade E-4, and was honorably released from active duty on 4 December 1978.
3. She had a break in service until her enlistment in the ARNG on 2 July 1985. She was discharged from her enlisted status on 1 July 1993 in order to accept a commission.
4. She served in the ARNG as a commissioned officer until her voluntary transfer to the IRR on 27 February 1995. Her retirement point summary shows that she performed no duty after her transfer to the IRR.
5. While the applicant's records do not contain the documents showing her transfer to the Retired Reserve, in an advisory opinion from the U.S. Army Human Resources Command (HRC), St. Louis, it was stated that the applicant voluntarily transferred to the Retired Reserve. She was eligible for transfer to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 6-1a(5), since she had reached the age of 37 and had completed a minimum of 8 years of qualifying Federal service. If she wishes to be transferred out of the Retired Reserve, she must apply for the transfer and meet the eligibility criteria outlined in Army Regulation 140-10, paragraph 6-4.
6. The applicant was provided a copy of the advisory opinion and given the opportunity to respond. She did not submit a rebuttal.
7. Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers), in effect at the time, set forth the basic authority for the separation of Reserve Component officer personnel. Chapter 4 of that regulation described, in pertinent part, the conditions under which Army Reserve officers may be discharged from their status as Reserve of the Army. Paragraph 4-4a provided, in pertinent part, that members of the Army Reserve will be removed from an active status and discharged or transferred to the Retired Reserve (if eligible), within 90 days after the board reports its findings for nonselection for promotion after the second consideration by a Department of the Army Reserve Components selection board if the officer is in the grade of first lieutenant, captain, or major in accordance with Title 10, U.S. Code, section 3846.
DISCUSSION AND CONCLUSIONS:
1. The HRC states that the applicant voluntarily requested transfer from the IRR to the Retired Reserve. Given the applicant's total lack of participation in the IRR, her request to transfer to the Retired Reserve would be logical and expected. Since the applicant had well over the 8 years of qualifying service required for transfer to the Retired Reserve, her request was properly approved.
2. While the applicant states that she believed that she remained assigned to the IRR, it would be unlikely that an officer who is not performing any duties would be selected for promotion. If she had been considered for promotion twice and not selected, she would have been required to be discharged or transferred to the Retired Reserve.
3. The applicant has not shown that she was erroneously transferred to the Retired Reserve. Her assignment to the Retired Reserve does not prevent her transfer to a Reserve unit as long as she meets the eligibility criteria outlined in Army Regulation 140-10.
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) AR20090003174
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ABCMR Record of Proceedings (cont) AR20090003174
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