IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090007459 


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 transferred to the Retired Reserve.

2.  The applicant states that she requested to be transferred to the Retired Reserve, but she was discharged.  She explains that she was initially placed in the Individual Ready Reserve, but did not complete the required 50 points per year.  She adds that she was sent an election of option form in which she selected to be transferred to the Retired Reserve and returned the form.

3.  The applicant provides a copy of the ARPC FL 3948 (Election of Options), a Memorandum of Nonparticipation, Federal Recognition Orders, a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), a Chronological Statement of Retirement Points, her Twenty Year Letter, and her Honorable Discharge Certificate.

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 4 June 1958.  She was appointed as a second lieutenant in the Army National Guard (ARNG) on 15 April 1984.  On 1 April 1997, she was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  A memorandum, dated 20 November 1996, notified the applicant of her eligibility for retired pay at age 60. 

4.  On 8 December 1998, the applicant was notified of her removal from an active status for failure to earn the required 50 retirement points during a retirement year.  She was instructed to complete the Election of Options form and return the form by the suspense date, 12 January 1999.  She was also told that failure to respond would result in her being discharged.  

5.  The applicant submitted a copy of her Election of Options form, dated 
11 January 1999, that shows she elected to be transferred to the Retired Reserve.

6.  There are no documents in the applicant’s available records pertaining to her discharge or her election form.

7.  A review of the applicant's transaction history from the Human Resources Command (HRC) Integrated Web Services (IWS) shows that the applicant contacted HRC on 10 April 2009 and on 14 April 2009 requesting to be transferred to the Retired Reserve instead of being discharged.  The applicant indicated that she had completed a statement of option in 1998.  HRC requested that the applicant fax a copy of her statement of option and a letter requesting transfer to the Retired Reserve.  There are no additional remarks indicating that the fax or the applicant's request was received.  

8.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in an RC has since been amended to the last 6 years, and on 26 April 2005, this requirement was reduced to zero (0) years.

9.  The same regulation further states, in pertinent part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.  

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer of USAR Soldiers.  Chapter 7 of the 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.  Although the applicant provided a copy of her election form dated 11 January 1999, there is no indication that this form was completed and submitted to the appropriate authority prior to the required suspense date.  Additionally, there is no information contained on HRC IWS that shows that her election form had been received at their office in 1998 as indicated by the applicant.  Therefore, in the absence of documentation indicating the applicant’s desire to be transferred to the Retired Reserve at the time of her discharge, the presumption of regularity must apply. 

2.  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 has failed to submit evidence that would satisfy that 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.



ABCMR Record of Proceedings (cont)                                         AR20090007459





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ABCMR Record of Proceedings (cont)                                         AR20090007459



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