IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010430 


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 record be corrected by voiding his discharge, dated 19 January 2008, and showing he was transferred to the Retired Reserve on that same date.  

2.  The applicant states, in effect, he received no retirement seminars from his command and did not understand that if he did not transfer to the Retired Reserve he would not receive cost of living increases.   

3.  The applicant provides a self-authored statement, a memorandum from the State of Wyoming Military Department, Office of The Adjutant General (OTAG), Plans and Actions Chief; and Wyoming Army National Guard (ARNG) Orders in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was born on 15 December 1949.  After previously serving on active duty in the Regular Army and in the U.S. Army Reserve (USAR), the applicant enlisted in the ARNG, in the rank of staff sergeant (SSG), on 16 November 1996.  

2.  On 10 September 2007, the State of Wyoming Military Department, OTAG, issued a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter), notifying the applicant he had completed the required years of service necessary to qualify for retired pay at age 60.  

3.  A DD Form 4 on file shows the applicant last reenlisted in the ARNG for 
2 years on 20 January 2006, which would have established his expiration of term of service (ETS) date as 19 January 2008.  

4.  On 19 January 2008, the applicant was honorably discharged from the ARNG and as a Reserve of the Army, as directed in OTAG, State of Wyoming Orders 028-011, dated 28 January 2008.  The applicant’s National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) issued to him on this date shows he was honorably discharged under the provisions of paragraph 8-35a, National Guard Regulation (NGR) 600-200, by reason of ETS, and was not transferred to the Retired Reserve.  It also shows that at the time he had completed a total of 20 years, 6 months, and 16 days of service for retired pay.  He had also completed a total of 25 years, 1 month, and 16 days of service for pay purposes.

5.  On 26 February 2008, Wyoming ARNG Orders 057-067 directed the applicant's discharge from the ARNG and transfer to the Retired Reserve, effective 26 May 2008.  On 10 March 2008, Wyoming ARNG Orders 070-005, revoked these orders and on 25 March 2008, Wyoming ARNG Orders 085-017, directed the applicant's discharge from the ARNG and as a Reserve of the Army, effective 19 January 2008.  

6.  On 10 June 2009, U.S. Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) Orders P06-907138 directed the applicant's retirement and placement on the Retired List, in the rank of sergeant first class (SFC), effective 15 December 2009.  

7.  HRC-St. Louis electronic records show the applicant's ETS was 19 January 2008, and there are no records or information indicating he attempted to be transferred to the Retired Reserve in conjunction with his discharge.  The USAR records show the applicant had routinely contacted HRC-St. Louis officials, on at least eight separate occasions, between 2003 and 2005 regarding various personnel issues that included transferring to the IRR and ETS.  There was no contact from the applicant between September 2005 and January 2009, at which point he called to update his address and he again called in March 2009, to check the status of his retirement packet.  There is no indication the applicant ever attempted to change his status from discharged to Retired Reserve between 19 January 2008, when he was discharged and August 2009, when he finally called claiming he was in the Retired Reserve.  


8.  The applicant provides a memorandum from the Wyoming ARNG Plans and Actions Chief that indicates the applicant's orders were processed for transfer to the Retired Reserve; however, those orders were later revoked and the Soldier served through his enlistment contract.  He claims the applicant did not understand the repercussions associated with discharging at his ETS instead of transferring to the Retired Reserve until several months post retirement.  He claims the applicant's command did not schedule him for attendance at retirement seminars.  He also provides orders issued on 26 February 2008, which directed his assignment to the Retired Reserve.  

9.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 contains guidance on removal from an active status and paragraph 7-1a indicates that Soldiers removed from an active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was transferred to the Retired Reserve instead of being discharged on 19 January 2008, was carefully considered.  However, the evidence of record confirms he was discharged from the ARNG and as a Reserve of the Army on 19 January 2008, which was also the date of his ETS.

2.  The evidence of record is void of any indication that he ever attempted to extend his enlistment or requested and was denied the option of transferring to the Retired Reserve prior to his ETS, or between the date of his discharge and the date of his retirement.  

3.  Further, the applicant is advised that the continuation of pay increases for members serving in the Retired Reserve are based on the continued availability of those members for recall to an active status in emergency situations.  Therefore, given there is insufficient evidence to show he was unjustly denied the opportunity to request transfer to the Retired Reserve and because he was not available for recall between his discharge and retirement, it would not be appropriate to correct his record solely for the purpose of entitling him to credit for service he did not perform and for pay increases he did not earn.  


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)                                         AR20090010430



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ABCMR Record of Proceedings (cont)                                         AR20090010430



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