IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090004493 


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 discharge orders from the U.S. Army Reserve (USAR), dated 23 June 2005, to show he was transferred to the USAR (Individual Ready Reserve (IRR)).

2.  The applicant states that the orders issued on 23 June 2005 did not specifically state that he was discharged and should have transferred to the IRR and that he did not even know these orders existed until he accessed his official records in January 2009 and noticed the orders.  

3.  The applicant provides a copy of Orders 05-174-00010, issued by Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, on 23 June 2005, in support of his request.  

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.  With prior enlisted service, the applicant’s records show he was appointed as Reserve commissioned officer of the Army and as an infantry second lieutenant in the Illinois Army National Guard (ILARNG) on 24 August 1990.  He subsequently completed the infantry officer basic course, served in various positions, and was promoted to first lieutenant.  He was honorably separated from the ILARNG on 1 July 1997 and transferred to the USAR Control Group (Reinforcement).  

3.  On 27 August 2003, by letter, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command or HRC), St. Louis, MO, notified the applicant that he was promoted to captain (CPT) in the USAR effective 17 April 2003.

4.  On 11 December 2003, the applicant requested and was authorized a transfer to a USAR Troop Program Unit, the 3rd Battalion, 335th Infantry Regiment (Troop Support), 2nd Brigade, 85th Division, Fort Sheridan, IL. 

5.  On 21 April 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 10 May 2004 to 19 November 2004.  He was honorably released from active duty to the control of his USAR unit on 30 January 2005.

6.  On 23 June 2005, Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, issued Orders 05-174-00010, directing the applicant’s discharge from the USAR in accordance with Army Regulation 135-175 (Separation of Officers), effective 23 July 2005.

7.  On 23 January 2008, the applicant was appointed as a CPT in the ILARNG.

8.  On 28 February 2008, HRC-St. Louis, MO, published Orders C-02-802702, releasing the applicant from the USAR Control Group (Reinforcement) and assigning him to the ILARNG effective 23 January 2008.

9.  Army Regulation 135-175 provides policy, criteria, and procedures for the separation of ARNG and/or USAR officers, except for officers serving on active duty or active duty training exceeding 90 days.  Chapter 4 describes conditions under which USAR officers may be discharged from their status as Reserves of the Army and prescribes criteria for discharging them.  

10.  Paragraph 4-4 of Army Regulation 135-175 provides for removal of an officer from an active status.  It states, in pertinent part, that members of the Army Reserve will be removed from an active status for any of the 18 reasons listed, with or without the officer’s consent regardless of the length of commissioned service.  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge orders should be corrected to show he was transferred to the USAR (IRR).

2.  The applicant was honorably discharged from the USAR on 23 June 2005 in accordance with Army Regulation 135-175 as shown on the U.S. Army Reserve Command, Fort McPherson, GA, orders published on 23 July 2005.  It is unclear what specific reason was used to generate the applicant's discharge orders.  Nevertheless, in the absence of evidence to the contrary, it is presumed that the applicant's discharge was administratively correct.  

3.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090004493





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ABCMR Record of Proceedings (cont)                                         AR20090004493



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