BOARD DATE:	  2 October 2009

		DOCKET NUMBER:  AR20090008679 


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, in effect, that her June 1998 discharge from the U. S. Army Reserve (USAR) be voided and that she be instead transferred to the Retired Reserve.

2.  The applicant states, in effect, that after 22 years of service, she was forced out of the USAR as a result of non-selection for retention because of downsizing through no fault of her own.  She also indicates that she wants to receive all pay increases and raises dating back to 1998.

3.  The applicant provides the following documents in support of her application:  self-authored statement; Non-Selection for Continued Unit Participation letter, dated 3 June 1997; AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 1 February 2007; Certificate of Appreciation; and Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 3 November 1995.

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's record shows she continuously served in an active status of the USAR through 2 August 1998, at which time she was honorably discharged.  The ARPC Form 249-E in her Official Military Personnel File (OMPF) shows she had completed a total of 22 years of qualifying service for non-regular retirement at the time of her discharge. 

3.  The applicant's last DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) on file in her record shows that she last enlisted for 6 years on 2 August 1992, which would have established her expiration of term of service (ETS) as 1 August 1998.  

4.  On 2 March 1997, in conjunction with her being scheduled to be considered by a Qualitative Retention Board (QRB) for retention consideration, the applicant completed an election form in which she elected to be transferred to the Individual Ready Reserve (IRR) in the event she was not selected for retention by the QRB.  Included in her options was the option to transfer to the Retired Reserve or to be honorably discharged.

5.  On 3 June 1997, a U.S. Army Reserve Command (USARC) memorandum notified the applicant that she was considered but not selected for qualitative retention by the QRB.  She was also informed that as a result of her non-selection for retention, not later than 30 July 1977, she would be transferred to the IRR according to the option she selected by endorsement.  

6.  On 15 July 1997, Headquarters, 77th Regional Support Command, Fort Totten, NY, Orders 196-46 directed the applicant's release from her unit by reason of "involuntary transfer to the IRR" and assigned her to the USAR Control Group (Reinforcement), effective 30 July 1997.

7.  The applicant's record is void of USAR discharge orders. 

8.  On 18 February 2009, U.S. Army Human Resources Command, St. Louis, MO, Orders P02-901910, directed the applicant's placement on the Retired List on 11 March 2009 [the date of her 60th birthday], in the rank of staff sergeant.

9.  The applicant provides a self-authored statement in which she indicates she recently learned that her former unit never retired her, but instead placed her in the USAR Control Group and subsequently discharged her in 1998, unbeknownst to her.  She further states that she was never informed of her discharge action and provides that had she been, she would have elected placement in the Retired Reserve.  She requests that the discharge action be revoked and placement in the correct retired status retroactive to August 1997.

10.  Army Regulation 135-205 (Enlisted Personnel Management) prescribes policies and responsibilities for the Qualitative Retention Program (QRP).  Paragraph 2-17 provides the disposition of Soldiers not selected for retention and it states, in pertinent part, that Soldiers who were not selected for retention in Army National Guard of the United States units or USAR troop program units are considered fully qualified for continued participation in the USAR as assigned IRR Soldiers if they have not reached 60 years of age.  Paragraph 2-18 provides that a Soldier who has not been selected for retention by a QRB will be reassigned to the Retired Reserve or to the IRR depending on the Soldier's option.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her records should be corrected to show she was transferred to the Retired Reserve retroactive to August 1997 or June 1998, instead of being discharged has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant was transferred to the IRR following her non-selection for retention by the QRB as she opted in her 2 March 1997 QRB election form.  It also confirms that she had the option of choosing transfer to the Retired Reserve or discharge; however, she elected not to choose either of these options when they were available to her.  

3.  In addition, although the applicant's MPRJ fails to contain the discharge order to confirm her 1998 discharge from the IRR, it does contain a DD Form 4 that confirms her ETS was 1 August 1998, and there is no indication that she ever took action to extend or reenlist, or to request transfer to the Retired Reserve at her 1998 ETS.  As a result, absent some action on her part, her discharge would have been the normal course of action taken by Reserve personnel officials.   

4.  The applicant was placed on the Retired List on 11 March 2009, in conjunction with her 60th birthday.  Absent any evidence that she was denied reenlistment in the IRR or transfer to the Retired Reserve in 1997 or 1998, there is an insufficient evidentiary basis to support granting the requested relief at this late date.  


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)                                         AR20090008679



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ABCMR Record of Proceedings (cont)                                         AR20090008679



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