IN THE CASE OF:
BOARD DATE: 4 May 2010
DOCKET NUMBER: AR20090017911
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 correction of his record to show he was transferred to the Retired Reserve on 5 June 2000 instead of being honorably discharged on that same date.
2. The applicant states the following:
a. Troop Program Unit personnel were unable to correct his retirement points at the time of discharge on 5 June 2000;
b. He worked with the Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) to correct his retirement points and received a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter);
c. He requested transfer to the Retired Reserve upon receipt of his 20 Year Letter and was told the HRC-St. Louis could not make this change; and
d. He was advised to apply to this Board for relief.
3. The applicant provides discharge orders and his 20 Year Letter 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military record shows after previously serving on active duty in the Regular Army and in the United States Army Reserve (USAR), he last enlisted in the USAR on 7 September 1993 and he continuously served in that status until he was honorably discharged on 5 June 2000 in the rank of master sergeant (MSG)/E-8.
3. Headquarters, 88th Regional Support Command Orders Number 00-157-021, dated 5 June 2000, honorably discharged the applicant from the USAR on this same date.
4. On 23 November 2006, HRC-St. Louis issued the applicant a 20 Year Letter that notified him he completed the required service and was eligible to receive retired pay at age 60 upon application. An ARPC Form 249-E (Chronological Statement of Retirement Points) on file confirms he completed 23 years and
2 days of qualifying service for non-regular Reserve retirement between 21 June 1972 and 5 June 2000.
5. 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 and paragraph 7-1a indicates that Soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention he should have been transferred to the Retired Reserve instead of being discharged from the USAR has been carefully considered and found to have merit.
2. In accordance with the applicable governing regulation, the applicant was eligible to transfer to the Retired Reserve in connection with his removal from an active USAR status.
3. The applicant clearly desires to be transferred to the Retired Reserve. Given the errors in his record regarding his qualifying service for retirement were not properly resolved until November 2006, well after his June 2000 discharge, it is obvious he was not properly counseled regarding his eligibility to transfer to the Retired Reserve at the time of his discharge. As a result, it would be appropriate and serve the interest of justice and equity to grant the requested relief.
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 2 June 2000 discharge from the USAR and showing he was 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) AR20090017911
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