BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009163 


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 reconsideration of his previous request to correct his records to show he was transferred to the Individual Ready Reserve (IRR), on
6 January 2003, and then to the Retired Reserve, instead of being discharged.  

2.  The applicant states, in effect, the Army Board for Correction of Military Records’ (ABCMR’s) decision to deny his request leads him to believe the United States Army Reserve Personnel Command (ARPERSCOM) erred on two separate occasions to his detriment.  He states that paragraph 3 of the ABCMR’s decision states that his records contain ARPERSCOM Orders D-01-200737, dated 8 January 2002, that erroneously show he was honorably discharged from the United States Army Reserve (USAR) on 8 January 2002 and that it appears that ARPERSCOM was not aware that Headquarters, United States Army 94th Regional Support Command had discharged him in October 2001.  He states that paragraph 4 of the ABCMR’s decision states that he provided an ARPERSCOM letter dated February 2002, welcoming him into the IRR; however, unless he can provide evidence to show he reenlisted or otherwise extended his 17 March 1995 enlistment, it appears this letter was also prepared in error.

3.  The applicant states the above two notifications deny him benefits to which he would otherwise be entitled.  He states that he lost the opportunity to elect to be transferred to the Retired Reserve in 2002 because he was informed by ARPERSCOM that he was in the IRR.  He states that prior to April 2000, he was in the IRR and he went on active duty; that he asked to be transferred to the IRR upon his release from active duty on 6 May 2000; and that it is not difficult to conclude that he would have returned to the IRR upon completion of his service. 4.  However, the ABCMR has concluded that he was not transferred to the IRR.  He states that he believed that he was in the IRR, as a result of the ARPERSCOM letter, dated 25 February 2002.  Therefore, he was not afforded the opportunity to exercise his right to be transferred to the Retired Reserve.  He states the ABCMR concluded that he was honorably discharged from his 17 March 1995 enlistment in October 2001 and that he timely requested transfer to the IRR subsequent to his October 2001 discharge.  

5.  He states that there is no basis for the ABCMR to conclude that he must show he reenlisted or otherwise extended his 17 March 1995 enlistment.  He states that the 25 February 2002 letter was not sent to him in error and that he is being denied the benefit of being a member of the IRR from 2002 to the present based on an unsupportable argument that the 25 February 2002 letter was sent in error.  The applicant states that there is ample evidence to support the proposition that he served his country with distinction and that he should not be denied the benefits that he is seeking.  He concludes that the remedy for this injustice would be to amend his records to show he was transferred to the Retired Reserve as of February 2002 or that he was in the IRR as he was informed by ARPERSCOM.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080003647, on 22 May 2008.

2.  The applicant provides a new argument that was not previously considered that requires consideration.

3.  After completing 17 years, 3 months, and 6 days prior service as a member of the Army National Guard, the applicant enlisted in the USAR on 13 May 1987.  On 15 September 1990, he was furnished a notification of eligibility for retired pay at age 60 (20-year letter).  The applicant will reach age 60 on 26 January 2010.

4.  The applicant reenlisted in the USAR for 3 years on 2 May 1992 and then again for 6 years on 17 March 1995.

5.  On 26 September 1995, Orders 95-269-049 (involuntarily) transferred the applicant to the USAR Control Group (Reinforcement) due to maximum years of service.

6.  ARPERSCOM Orders C-02-004190 were published on 15 February 2000 reassigning the applicant from the USAR Control Group (Reinforcement) to a troop program unit (TPU).  On 12 April 2000, Orders Number 006368 was published ordering the applicant to annual training for 14 days, effective 6 May 2000.

7.  On 31 October 2001, 94th Regional Support Command Orders 01-304-004 were published honorably discharging the applicant from the USAR at the expiration of his term of service (ETS), effective 31 October 2001.  These orders show he was held beyond his service obligation date through no fault of his own.

8.  On 19 December 2001, the applicant received a letter from ARPERSCOM notifying him that as a member of a USAR TPU requests for corrections of points or other correspondence must go through his chain of command and to resubmit his documentation or correspondence to his unit of assignment.

9.  In a letter dated 26 December 2001, the applicant informed an ARPERSCOM official he had received her letter dated 19 December 2001 and that he was returning his request pertaining to military records for processing, along with a copy of Orders 01-304-004, dated 31 October 2001.  In the letter the applicant stated that his ETS date was to be January 2001 and that in September 2000, he requested through his commander to be transferred to the IRR.  He stated that he contacted his unit on 10 September 2001 to inform them that he had heard nothing in regard to his request of September 2000.  In the letter, the applicant stated that he contacted his unit again on 12 September 2001 to volunteer his services as a military policeman due to the 11 September 2001 attacks.  He stated that he was told that nothing could be done until his 201 file was located; and that on 1 October 2001, he was advised to contact ARPERSCOM to request a records search and at that time he was told he would be honorably discharged as of 31 October 2001.  In the letter, the applicant stated that in early November 2001, he contacted a recruiter and as of 26 December 2001, his records had not been located.

10.  On 8 January 2002, Orders D-01200737 were published by ARPERSCOM honorably discharging the applicant from the USAR effective 8 January 2002.

11.  On 25 February 2002, ARPERSCOM forwarded a letter to the applicant welcoming him to the IRR and explaining his available options.

12.  The Soldier Management System, Human Resources Command (HRC), St. Louis, Missouri (formerly ARPERSCOM), shows the applicant inquired about being transferred to the Retired Reserve on 17 January 2008.  It states, "Soldier was discharged from the IRR in 2002.  He wants to be transferred to the Retired Reserves instead.  I told him this command will not change/revoke the order and place him in the Retired Reserves because the order was cut in 2002.  I told him he would have to go through ARBA and file a claim with them.  I then proceeded to explain the difference to him between the Retired Reserves and being discharged.  I also explained how this affects his retirement at age 60.  Call not forwarded."

13.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.  It provides, in pertinent part, that the USAR is a Federal force which is comprised of the Ready Reserve, the Standby Reserve, and the Retired Reserve.

14.  The Retired Reserve consists of Soldiers who retain their status as Reserves of the Army and who are or have been removed from an active status, or have been assigned at their requests and are otherwise qualified.

15.  The Reserve Control Group (Standby) consists of Standby Reserve Soldiers on the inactive list who qualify for assignment.  These Soldiers are not authorized Reserve duty training, retirement point credit, or promotion consideration.

16.  The Ready Reserve Control Group consists of non-unit Ready Reserve Soldiers with a training obligation and must take part in annual training when so directed.  The Ready Reserve Control Group is comprised of Annual Training, Individual Mobilization Augmentees, Reinforcement, Active Guard Reserve, Reserve Officers' Training Corps, and other various groups.

17.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of that regulation relates to the removal of Soldiers from 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.

18.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 1-30 states, in pertinent part, that orders discharging a Soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.
19.  Army Regulation 135-178 also states that upon expiration of term of service (ETS), the Soldier will be discharged by the separation authority.  It also states that when through administrative error a Soldier is not discharged on the actual date of his or her ETS, he or she will be considered to have been retained beyond normal discharge date for the convenience of the Government.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that was transferred to the IRR on 6 January 2003 and subsequently transferred to the Retired Reserve, instead of being discharged.

2.  He also contends that the erroneous notifications that were forwarded to him by ARPERSCOM showing that he was discharged from the USAR on 8 January 2002 and welcoming him to the IRR on 25 February 2002 denied him the opportunity to elect to be transferred to the Retired Reserve in the year 2002.

3.  He further contends that since he had previously been in the IRR, it is not unreasonable to conclude that he would have, and did, timely request to be returned to the IRR upon completion of his “active duty” on 6 May 2000.  

4.  The applicant’s contentions have been considered; however, the available evidence shows his contentions are without merit.  There is no evidence of record, nor has the applicant submitted any evidence to show that he requested to be transferred to the IRR or the Retired Reserve prior to his discharge from the USAR on 31 October 2001.

5.  The applicant admits that he was informed on 1 October 2001 he was being discharged effective 31 October 2001.  His ETS would have been 16 March 2001 had he not been held beyond his service obligation date through no fault of his own.  He did not inquire about being transferred to the Retired Reserve until 17 January 2008.  It appears he did not inquire about reenlisting.  Additionally, he provides no explanation as to why he believed that he could be discharged on 31 October 2001 and then discharged again on 8 January 2002.  

6.  The applicant had from the time that he received his 20-year letter on 15 September 1990 until his discharge on 31 October 2001 to submit his request to be transferred to the Retired Reserve and he failed to do so.  His records are void of any evidence that shows he made an effort to request transfer to the Retired Reserve once he was informed that he was being discharged from the USAR on 31 October 2001.  By the time he received the ARPERSCOM letter dated 25 February 2002, he was already ineligible to request transfer to the Retired Reserve.
7.  The applicant was a member of the USAR Control Group (Reinforcement) at the time that he was honorably discharged from the USAR on 31 October 2001, after being held beyond his ETS.  Although it appears that he was erroneously notified that he was being discharged from the USAR effective 8 January 2002 and that he was a member of the IRR, the erroneous notification does not negate the fact that Orders 01-304-004 were published honorably discharging him from the USAR, effective 31 October 2001 as a result of his ETS. 

8.  In accordance with the applicable regulation, orders discharging a Soldier will not be revoked or the effective date changed after the effective date of discharge unless there is a manifest error or fraud.  There does not appear to be any error or fraud in the orders that discharged him from the USAR and the applicant has provided no evidence to show that he made a timely request to be transferred to the Retired Reserve.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080003647, dated 22 May 2008.




      _______ _   _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)                                         AR20090009163



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ABCMR Record of Proceedings (cont)                                         AR20090009163



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