IN THE CASE OF:	  

		BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090003853 


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 discharge be voided and that she be transferred to the Retired Reserve.

2.  The applicant states that she believes that her discharge occurred in error.  She states that she had already received her Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) and that she had already completed over 20 years of active and Reserve service in a troop program unit.  She states that she believes that her 10 December 1997 discharge was an unusual administrative error that should never have happened.

3.  The applicant provides a copy of her 20-year letter dated 30 October 1996; a copy of her Honorable Discharge Certificate dated 10 December 1997; a copy of her Chronological Statement of Retirement Points dated 21 September 2006; a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 24 May 1982; a copy of her DD Form 214 dated 1 June 1991; and a copy of her DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) dated 2 March 1992.

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 10 July 1952.  On 19 September 1974, she enlisted in the United States Army Reserve (USAR) in Jacksonville, Florida, for 4 years in the pay grade of E-3.  After completing 1 year, 2 months, and 26 days of service as a member of the USAR, the applicant was honorably discharged on 14 December 1975, under the provisions of Army Regulation 635-200 (Personnel Separations - General Provisions for Discharge and Release), chapter 5-4a, to accept an appointment as a commissioned officer in the USAR.

3.  On 15 December 1975, the applicant accepted an appointment as a Reserve commissioned officer in the rank of first lieutenant (O-2).

4.  On 12 January 1976, orders were published ordering the applicant to active duty effective 24 February 1976.  She was promoted to the rank of captain (O-3) on 12 March 1978.

5.  After completing 6 years, 2 months, and 28 days of net active service this period, the applicant was honorably released from active duty (REFRAD) on 24 May 1982 under the provisions of Army Regulation 635-100 (Officer Personnel Separations), chapter 3, for miscellaneous individual reasons and she was transferred to the USAR Control Group (Reinforcement).

6.  The applicant was promoted to the rank of major (O-4) on 11 March 1985.

7.  On 21 November 1990, the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm.

8.  On 1 June 1991, she was honorably REFRAD due to completion of required active service.  She had served 6 months and 11 days of net active service during her mobilization and she was returned to her USAR unit.

9.  The applicant was promoted to the rank of lieutenant colonel (O-5) on 10 March 1992.  On 30 October 1996, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year letter). 

10.  On 10 December 1997, she was honorably discharged from the USAR.  The orders discharging her from the USAR are not available.  
11.  A review of her records fails to show that the applicant was notified that she was being discharged or that she had the option of being transferred to the Retired Reserve.

12.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) 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 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 contends that her discharge should be voided and that she be transferred to the Retired Reserve.

2.  Her contentions have been noted and there is no evidence in the available records that shows that she was afforded the opportunity to be transferred to the Retired Reserve.  It is also reasonable to presume that given her qualifying years of creditable service for retired pay purposes, had she been afforded the opportunity prior to discharge, she would have elected to be transferred to the Retired Reserve.

3.  Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct her military records by voiding her discharge of 10 December 1997 and assigning her to the Retired Reserve effective the same date.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined that the evidence presented was insufficient to warrant a recommendation for relief.  There was no error or injustice by the U.S. Army that would warrant granting relief.  The applicant requested transfer to the IRR.  The U.S. Army granted her request.  At the time of her request she had sufficient retirement points to qualify for retired pay at age 60.  The applicant had a duty to inquire of the U.S. Army in 1997 when she received her honorable discharge certificate if she believed it was in error.  By failing to do so she comes to this Board with "unclean hands" in seeking what amounts to equitable relief for a pension benefit based on a longer period of service.  Accordingly, her retired pay should be calculated based upon her service as of September 1996.  

2.  As a result, the Board recommends that the individual's request that her discharge be voided and that she be transferred to the Retired Reserve be denied.



      ___________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)                                         AR20090003853



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ABCMR Record of Proceedings (cont)                                         AR20090003853



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