IN THE CASE OF:
BOARD DATE: 21 January 2010
DOCKET NUMBER: AR20090014216
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 discharge be voided and that he be transferred to the Retired Reserve.
2. The applicant states that he received his 20-year letter and was discharged from the United States Army Reserve (USAR) but was never transferred to the Retired Reserve, which is what he wanted to do.
3. The applicant provides a copy of his discharge orders and his 20-year letter.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 11 July 1967, enlisted in the USAR on 4 August 1987, and continued to serve through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 4 August 2000 while serving as a movements specialist (88N).
2. His records show that he was ordered to active duty in support of Operation Joint Forge in 1998 and served for 6 months deployed to Germany and Hungary.
3. His expiration of term of service (ETS) was 15 August 2007 and on 6 September 2007, he received his 20-year letter indicating that he had completed the required years of qualifying service to apply for non-regular retired pay at age 60 (11 July 2027). On 26 October 2007, he was honorably discharged from the USAR and his discharge orders indicate that he was held beyond his normal discharge date through no fault of his own.
4. On 20 February 2008, the applicant contacted officials at the Human Resources Command St. Louis (HRC-STL) complaining that he had received his 20-year letter but had not received any orders transferring him to the Retired Reserve. Officials at the HRC-STL advised the applicant to apply to the Board.
5. Army Regulation 140-10 sets 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 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.
6. Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted Soldiers from the Reserve Components. Paragraph 1-30 states 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants discharge was accomplished in accordance with law and regulations applicable at the time.
2. However, it appears that he either was not afforded the opportunity to be transferred to the Retired Reserve or he was unaware that he had to specifically request transfer to the Retired Reserve. It is also reasonable to presume that given his qualifying years of creditable service for retired pay purposes, had he been afforded the opportunity prior to discharge, he would have elected to be transferred to the Retired Reserve.
3. Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records by voiding his discharge of 26 October 2007 and assigning him to the Retired Reserve effective the same date.
4. In view of the foregoing, the applicants records should be corrected as recommended below.
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 voiding his 27 October 2007 discharge from the USAR and by transferring him to the Retired Reserve effective 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) AR20090014216
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ABCMR Record of Proceedings (cont) AR20090014216
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