BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090014550 


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 his record be corrected to show he was allowed to continue his service and complete 20 years of qualifying service for non-regular Reserve Retirement.  

2.  The applicant states if his files had been properly reviewed and he had been processed in accordance with the governing regulation, he would have been allowed to serve until he completed the 20 qualifying years of service necessary to qualify for Reserve retirement.  

3.  The applicant provides a self-authored chronology of events and ARPC Form 249-E (Chronological Statement of Retired Points) 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's record shows he served on active duty in an enlisted status from 22 November 1972 through 29 June 1981, at which time he was honorably discharged, in the rank of staff sergeant/E-6.

3.  On 30 June 1981, the applicant was appointed a first lieutenant in the U.S. Army Reserve (USAR) and continued serving on active duty in that status; and on 1 September 1983, he was promoted to captain. 

4.  On 30 August 1985, the applicant was notified that a Department of the Army Selection Board convened to consider officers for final voluntary indefinite status and concluded he could not be further retained on active duty.  It further informed him that he would be released from active duty (REFRAD) within 90 days of receipt of the notification.  

5.  On 20 December 1985, the applicant was honorably REFRAD, in the rank of captain, and transferred to the USAR.  

6.  On 4 May 1990, a memorandum from the U.S. Total Army Personnel Command, St. Louis, Missouri (TAPC-St. Louis) notified the applicant he had been considered but not selected for promotion to major by a Reserve Component Selection Board (RCSB).  

7.  On 6 May 1991, a TAPC-St. Louis memorandum notified the applicant he had again been considered and not selected for promotion to major by a RCSB.  He was further advised that as a result of his second non-selection for promotion, he had to be separated from the USAR and that he would be informed of any options available to him by separate correspondence.  

8.  On 22 May 1991, orders published by Headquarters, 124th USAR Command, Fort Lawton, Oklahoma, assigned the applicant to the USAR Control Group (Reinforcement), effective 9 April 1991.  These orders indicate the action was taken at the request of the officer.  

9.  The ARPC Form 249-E in the applicant's record shows he completed 
18 years, 7 months and 8 days of qualifying service for Reserve retirement at the time of his transfer to the USAR Control Group. 

10.  The applicant's electronic record contains entries in the Major Personnel Actions section of the Total Army Personnel Data Base (TAPDB) that show he was transferred to the USAR Control Group (Reinforcement) on 9 April 1991, by 

reason of expiration of his USAR service obligation, and he was involuntarily discharged on 2 October 1996, by reason of non-selection.  

11.  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 active status.  It states officers who are twice not selected for promotion to chief warrant officer 3 (CW3), chief warrant officer 4 (CW4), captain, major, and lieutenant colonel will be removed from active status under removal rule 4 and that exception rule 2 applies.  

12.  Section II of the same regulation provides guidance on exceptions to removal from active status.  Exception number 2 states officers having 18 or 
19 years of qualifying Federal service for retired pay will not be removed without their consent.  An officer meeting this criterion on the date of removal will be retained to complete 20 years of qualifying service.  Retention is authorized until the earlier of the following dates:

	a.  The date on which 20 years of qualifying Federal Service for retired pay is completed;

	b.  Three years from required removal date, which applies to officers having 18 but less than 19 years of qualifying service; or

	c.  Two years from required removal date, which applies to officers having at least 19 but less than 20 years of qualifying service.  

13.  Title 10, U.S. Code, section 14056 states, unless retained as provided in section 12646, each Reserve office who holds the grade of major who has failed of selection to the net higher grade for the second time shall be removed from the Reserve active-status list.

14.  Title 10, U.S. Code, section 12646(a) states if on the date prescribed for discharge or transfer from an active status a Reserve commissioned officer is entitled to be credited with at least 18, but less than 19 years of qualifying service, he may not be discharged or transferred from an active status before the earlier of (1) the date on which he is entitled to be credited with 20 years of qualifying service or (2) third anniversary of the date on which he otherwise would be discharged or transferred from an active status.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should have been retained in an active Reserve status to complete 20 years of qualifying service after his second non-selection for promotion to major has been carefully considered and found to have merit.  

2.  By regulation, officers having 18 or 19 years of qualifying Federal service for retired pay will be retained to complete 20 years of qualifying service in order to qualify for retired pay at age 60.  Officers having 18 but less than 19 will be retained for three years from the required removal date.  

3.  The evidence of record confirms the applicant was informed of his second non-selection for promotion to major on 6 May 1991.  At the time of this notification, he had completed 18 years, 7 months and 8 days of qualifying service for retirement.  It further shows orders transferring him to the USAR Control Group (Reinforcement) were published on 22 May 1991, with an effective date of 9 April 1991.  

4.  The orders transferring the applicant to the USAR Control Group indicate the transfer was accomplished at the request of the applicant.  However, an entry on the TAPDB shows the reason for transfer was completion of USAR service obligation.  The applicant asserts he never requested transfer and the record is void of any documentation indicating he voluntarily requested this transfer.

5.  The record further confirms the applicant was involuntarily discharged by reason of promotion non-selection on 2 October 1996.  Absent any evidence of record showing the applicant was properly counseled regarding how he could earn retirement points while in the USAR Control Group (Reinforcement) to complete 20 years of qualifying service for retirement, it would be appropriate to grant the requested relief.  

6.  In view of the facts of the case, the applicant's record should be corrected to show he completed 20 years, 7 months, and 8 days of qualifying service for retirement by crediting him with 50 retirement points and a qualifying year for retirement in both the RYE on 29 June 1992 and the RYE on 29 June 1993.   

7.  Based on the service credit recommendation in the preceding paragraph, the applicant should also be issued a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter).  His record should also be corrected by voiding his 2 October 1996 discharge from the USAR, and showing he was instead transferred to the Retired Reserve on that 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.  by crediting him with 50 retirement points and a qualifying year for retirement in both the RYE on 29 June 1992 and the RYE on 29 June 1993 and showing he completed 20 years, 7 months, and 8 days of qualifying service for retirement;

	b.  issuing him a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) confirming he completed 20 qualifying years of service and is eligible for retired pay at age 60 upon application; and 

	c.  voiding his 2 October 1996 discharge from the USAR and showing he was instead transferred to the Retired Reserve on that 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)                                         AR20090014550



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ABCMR Record of Proceedings (cont)                                         AR20090014550



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