IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090012558 


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 his U.S. Army Reserve (USAR) discharge orders, dated 12 December 2005, be revoked and that he be transferred to the Retired Reserve effective 12 January 2006.

2.  The applicant states, in effect, that he became eligible for transfer to the Retired Reserve on 1 September 2004 and that shortly after receiving his 
20-year letter he expressed his desire to be transferred to the Retired Reserve; however, his request was not properly processed.  He contends that at the time of his request he was facing discharge proceedings and that his commander approved his discharge under the erroneous belief that he would be transferred into the Retired Reserve and would receive full benefits.  He points out that the advisory opinion from the U.S. Army Human Resources Command states that he would have been allowed to transfer to the Retired Reserve in lieu of the discharge action.      

3.  The applicant states that besides serving in the USAR he was a nurse in Wisconsin.  He goes on to state that while working as a nurse he met and later became involved with a patient and that in Wisconsin having sexual relations with a patient while the patient is in the hospital is a felony.  Because of this felony, he was notified he was being considered for separation.  A separation board convened on 31 May 2003 and recommended that he be separated with an honorable discharge.  While waiting for the final processing of the board, he became eligible for transfer to the Retired Reserve.  He contends that the 

commander desired that he be transferred to the Retired Reserve and made that desire known to his subordinates.  However, for inexplicable reasons a human resource specialist at the Regional Readiness Command believed he could not be transferred to the Retired Reserve and his commander approved the recommendation to separate him with an honorable discharge on 13 October 2004 and he was subsequently discharged on 12 January 2006.   

4.  The applicant provides a supplemental statement with 11 enclosures outlined on page 4 of the statement in support of his application.  

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 22 August 1958.  Having prior enlisted and commissioned service in the Regular Army, the applicant was released from active duty on 14 February 1992 and transferred to the USAR.  He was promoted to major effective 17 November 2000.

3.  On 13 May 2002, the applicant was convicted of second degree sexual assault in Wisconsin.  On 23 May 2002, he was sentenced to probation for a period of 10 years. 

4.  A board of officers convened on 31 May 2003 and recommended that the applicant be separated from the USAR, that he be granted an honorable discharge, and that he be allowed to transfer to the Individual Ready Reserve (IRR) until 27 July 2004 so he could obtain 20 years of service for the purpose of retirement.  




5.  The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 1 September 2004.

6.  On 13 October 2004, the approval authority [Brigadier General B] approved the findings and recommendations of the board of officers with the following exceptions: "Approved for separation, with recommended characterization of honorable service.  Separation should occur immediately, without transfer to IRR, because officer has obtained his 20-year letter of retirement eligibility." 

7.  Orders, dated 12 December 2005, show the applicant was honorably discharged from the USAR effective 12 January 2006.

8.  In the processing of this case, a staff advisory opinion was obtained from the Human Resources Assistant, Transition and Separation Branch, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion states that the applicant was serving as a Troop Program Unit (TPU) officer at the time of his boarding action, that he continued drilling with his unit after the board hearing, and that he earned his 20-year letter prior to the final approval of the findings and recommendations of the board.  Upon receipt of the 20-year letter and written request by the applicant he should have been allowed to request transfer to the Retired Reserve in lieu of the involuntary separation action if that request was made prior to the finalization of the board action.  The opinion states that the applicant's discharge orders, dated 12 December 2005, and effective 12 January 2006 was issued by their command in accordance with procedure upon the recommendation of an administrative separation board and the final approval of the Commander, Human Resource Command, St. Louis, Missouri, for TPU Soldiers.       

9.  In support of his claim, the applicant provided three sworn statements from officers attesting that when the applicant received his 20-year letter the staff directed the unit administrator to prepare paperwork to assist the applicant in transfer to the Retired Reserve.  After consulting with 88th Regional Support Command, the unit administrator was informed that such a transfer would not be possible and the action was dropped.  The applicant also provided a sworn statement from the unit administrator attesting to the above.   

10.  The applicant also provided a letter, dated 10 June 2009, from Brigadier General (Retired) B, the approval authority for the board of officers proceedings.  He states that it was his understanding and belief as of the date of his determination that no transfer of the applicant to the IRR was appropriate or 



necessary because he had met all retirement qualifications and requirements to entitle his timely receipt of all accumulated and earned retirement benefits under the applicable laws and regulations pertaining to retirement of officers from the USAR.  The specific reason he believed the applicant should receive all retirement benefits associated with his military service was because of his excellent overall military service record, accomplishments, and awards over an extended period of time.  He indicated that he considered specifically the non-military related nature of the civilian felony conviction for which his separation action was initiated.  He further states that it was his understanding and intention that the Honorable Discharge, combined with his prior receipt of a 20-year retirement letter, would ensure his receipt of all earned retirement benefits.  Had he been aware that the applicant had not yet achieved full retirement status, he would have recommended that he be placed into the IRR until he had earned fully such privileges and rights.      

11.  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:

Prior to the final approval of the findings and recommendations of the board of officers, the applicant continued drilling with his unit and was issued his 20-year letter on 1 September 2004.  At this time, per the advisory opinion, he should have been allowed to request transfer to the Retired Reserve.  Instead he was honorably discharged from the USAR effective 12 January 2006.  Therefore, it would now be appropriate as a matter of equity in this case to grant the applicant's request by voiding his discharge of 12 January 2006 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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  voiding Department of the Army, U.S. Army Human Resources Command Orders D-12-537911, dated 12 December 2005, that discharged him from the USAR; and
   
   b.  transferring him to the Retired Reserve effective 12 January 2006.
   



      _______ _   _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)                                         AR20090012558



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ABCMR Record of Proceedings (cont)                                         AR20090012558



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