IN THE CASE OF:
BOARD DATE: 30 July 2009
DOCKET NUMBER: AR20090004020
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 correction of his military records to show that he was transferred to the Retired Reserve.
2. The applicant states he was not aware that he should have been transferred to the Retired Reserve. He contends that the error was not his fault.
3. The applicant provides, in support of his application, copies of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), separation orders, discharge orders, Honorable Discharge Certificate, and DD Form 108 (Application for Retired Pay Benefits) with enclosures.
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 was born on 7 April 1949. On or about 3 March 1971, he enlisted in the Army National Guard. He completed his initial training and was assigned for duty as a clerk typist.
3. On 14 October 1977, the applicant was commissioned as a first lieutenant, Judge Advocate General's Corps.
4. On 14 November 1985, the applicant was promoted to major, pay grade O-4.
5. In a letter, dated 13 June 1991, the applicant was notified that he had completed the required years of service and was eligible to receive retired pay at age 60.
6. Orders 012-177, Military Department of Indiana, dated 17 January 1992, separated the applicant from the Army National Guard and transferred him to the United States Army Reserve Control Group (Reinforcement) [Individual Ready Reserve] effective 31 January 1992. The additional instructions stated in part, "Retired reservists with 20 or more years of military service for retirement
of effective date of retirement order
immediately prior to transfer to the Retired Reserve
."
7. NGB Form 22, Indiana Army National Guard, effective 31 January 1992, shows that the applicant was transferred to the United States Army Reserve Control Group (Reinforcement).
8. Orders D-01-702107, United States Army Reserve Personnel Center, dated 13 January 1997, discharged the applicant from the United States Army Reserve.
9. A DD Form 108, dated 20 January 2009, as submitted by the applicant, shows that the applicant requested retired pay benefits based on his military service from 21 August 1971 to 31 January 1992.
10. In a letter, dated 29 January 2009, from the Retired Personnel Office, Indiana National Guard, the applicant was advised to submit a request to this Board for correction of his military records to show that he was transferred to the Retired Reserve. This correction would permit him to be eligible to receive all cost of living raises. The letter further stated that he was not at fault for not being transferred.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show that he was transferred to the Retired Reserve.
2. The available evidence clearly shows that the applicant had completed sufficient service for retirement in 1991. Effective 31 January 1992, he was transferred to the Individual Ready Reserve. However, the additional instructions in those orders indicate the orders pertained to a Soldier who had been transferred to the Retired Reserve. Therefore, it does appear that the applicant was erroneously transferred to the Individual Ready Reserve instead of to the Retired Reserve. The applicant was subsequently, in 1997, discharged.
3. The applicant's NGB Form 22, effective 31 January 1992, shows that he was placed in the United States Army Reserve (Reinforcement). Based upon the additional instructions in the transfer orders, it appears that his NGB Form 22 was also erroneously prepared.
4. In view of the above, the applicant's records should be corrected to show that he requested a transfer to the Retired Reserve and that he was placed in the Retired Reserve effective 31 January 1992.
BOARD VOTE:
____X___ ___X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:
a. voiding Orders D-01-702107, United States Army Reserve Personnel Center, dated 13 January 1997;
b. showing that he requested transfer to the Retired Reserve in January 1992;
c. amending his NGB Form 22 and Orders 012-177, Military Department of Indiana, dated 17 January 1992, to show he was transferred to the Retired Reserve effective 31 January 1992, and
d. auditing his military service and pay records and processing his request for retired pay benefits based on the above corrections.
___________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) AR20090004020
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ABCMR Record of Proceedings (cont) AR20090004020
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