IN THE CASE OF:	

		BOARD DATE:	 16 March 2010 

		DOCKET NUMBER:  AR20090015298 


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 from the U.S. Army Reserve (USAR) be voided and that he be retained in the USAR.

2.  The applicant states, in effect, he was moved from the Retired Reserve without his knowledge.  He states he is under the age of 60 and desires to remain in the USAR.  He does not wish to be separated from the Army.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 13 August 1975, NGB Form 22 (National Guard Bureau Report of Separation and Record of Service), and discharge orders from the USAR.

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.  On 7 January 1984, the applicant enlisted in the Arkansas Army National Guard (ARARNG).  He had previously served 3 years in the Regular Army and 
3 years in the USAR.

3.  On 3 March 2001, the applicant was notified he had completed the required years of service to be eligible for retired pay upon application at age 60.

4.  On 20 April 2001, the applicant submitted a letter to his commander requesting to be transferred to the Individual Ready Reserve (IRR).  He extended his enlistment for a period of 1 year for this purpose.

5.  Military Department of Arkansas, Office of The Adjutant General, Camp Robinson, North Little Rock, AR Orders 226-005, dated 15 August 2001, transferred the applicant to the Retired Reserve effective 21 April 2001.

6.  Military Department of Arkansas, Office of The Adjutant General, Camp Robinson Orders 031-001, dated 31 January 2002, amended Orders 226-005 to show the applicant was transferred to the USAR Control Group (Reinforcement).

7.  U.S. Army Reserve Personnel Command (now known as Human Resources Command (HRC), St. Louis, MO (HRC-STL) Orders D-10-242452, dated 
22 October 2002, discharged the applicant from the USAR Control Group (Reinforcement), effective 22 October 2002.

8.  On 15 November 2002, the applicant executed an antedated enlistment in the USAR for a period of 6 years, effective 22 April 2002.

9.  HRC-STL Orders D-10-242452R, dated 9 January 2003, voided or rescinded HRC Orders D-10-242452, dated 22 October 2002.

10.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows while he was in the USAR, he earned:  

*   21 points for retirement year ending (RYE) 6 January 2002

*   15 points for RYE 6 January 2003

*     5 points for RYE 2 May 2003

11.  HRC-STL Orders D-05-317270, dated 1 May 2003, discharged the applicant from the USAR Control Group (Reinforcement), effective 2 May 2003.

12.  Title 10, U.S. Code (USC), Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.  A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army.

13.  Paragraph 4.18 of Department of Defense Directive 1235.13 (Management of the IRR and the Inactive National Guard) states that individual Reservists who are qualified for retirement under Title 10, USC, Chapter 1223 (have attained 20 years of qualifying service for retirement pay) are required to attain 50 points each anniversary year to be retained in the Ready Reserve, including the IRR, or the active status list of the Standby Reserve.

14.  Army Regulation 140-10 (Army Reserve, Assignments, Attachments, Details, and Transfers) states eligible Soldiers must request transfer to the Retired Reserve.

15.  Paragraph 7-3.1 of Army Regulation 140-10 states an enlisted Soldier who fails to attain 50 points by the anniversary of his RYE date will be removed from an active status.  A waiver of nonparticipation may be requested and granted only on a one-time basis.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be voided and he should be allowed to remain in the USAR.

2.  The applicant was discharged from the ARARNG and transferred to the IRR as he requested.  He was required to attain 50 retirement points each RYE because he had already attained 20 years of qualifying service for retirement pay.

3.  The applicant's ARPC Form 249-E shows he did not attain 50 retirement points for 2 years after his transfer to the USAR.  There is no evidence the applicant requested transfer to the Retired Reserve.  Therefore, it appears he was discharged on 2 May 2003 in accordance with Army Regulation 140-10 due to failure to attain the required number of retirement points.


4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
 
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)                                         AR20090015298



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ABCMR Record of Proceedings (cont)                                         AR20090015298



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