IN THE CASE OF:
BOARD DATE: 19 November 2009
DOCKET NUMBER: AR20090008842
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 his Army National Guard discharge orders, dated 5 February 2009, be revoked and that he be transferred to the Retired Reserve effective 2 March 2009.
2. The applicant states, in effect, that he wants to be transferred to the Retired Reserve because he has a 20-year letter and that he would be eligible for retired pay upon application at age 60 in accordance with Title 10, U.S. Code, chapter 1223.
3. The applicant provides a copy of his notification of eligibility for retired pay at age 60 and a Notification of Intent - Soldier Election Form in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 2 June 1964. Having prior service in the U.S. Army Reserve, the applicant enlisted in the Army National Guard on 26 April 1986. He was promoted to staff sergeant on 15 July 1994.
2. The applicants notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 11 September 2001.
3. On 13 January 2009, the applicant was notified that he had been found medically unfit for duty.
4. On 21 January 2009, the applicant elected to be discharged from the Army National Guard and as a Reserve of the Army for medical retention disqualification.
5. Orders, dated 5 February 2009, show the applicant was honorably discharged in the rank of staff sergeant from the Army National Guard.
6. On 3 May 2009, the applicant submitted his application to the Board to change his election from discharge to transfer to the Retired Reserve.
7. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states, in pertinent part, that eligible Soldiers must request transfer/assignment to the Retired Reserve.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant elected to be discharged from the Army National Guard on 21 January 2009 and orders show he was properly discharged from the Army National Guard on 2 March 2009 based on his election.
2. However, it is also noted that less than 5 months after he made his election, he applied to the Board to have his election changed, which implies that he discovered that there are more benefits associated with being in the Retired Reserve.
3. Therefore, it is reasonable to presume that at the time the applicant made his election, he was not properly briefed on the benefits associated with being in the Retired Reserve (ie, cost of living raises) vice being discharged.
4. It also appears in his case specifically, that there was no disadvantage to his selecting transfer to the Retired Reserve given that he was deemed to be medically unfit for retention and thus would be unable to be recalled. Therefore, it was to his advantage to be transferred to the Retired Reserve.
5. Accordingly, it does not seem reasonable under these circumstances that if a person was properly briefed on the advantages and disadvantages of transferring to the Retired Reserve vice being discharged, that a reasonable person would elect discharge.
6. Therefore, it would be in the interest of justice in this case to grant the applicant's request by voiding his discharge of 5 February 2009 and by transferring him to the Retired Reserve on the same date.
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 full relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his discharge of 5 February 2009 and by transferring him to the Retired Reserve on the same date.
____________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) AR20090008842
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ABCMR Record of Proceedings (cont) AR20090008842
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