IN THE CASE OF:
BOARD DATE: 13 July 2010
DOCKET NUMBER: AR20090020477
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 he be placed in an active drill status and receive pay and allowances he was denied and any promotions he would have been eligible for after being improperly placed in the Retired Reserve.
2. The applicant states he was improperly placed in the Retired Reserve as determined by the Department of the Army Inspector General (DAIG).
3. The applicant provides copies of:
* a letter, dated 20 October 2009, from Headquarters, U.S. Army Reserve Command (USARC)
* his orders to the Retired Reserve
* a letter, dated 23 March 2005, from the IG, USARC
* a letter, dated 30 June 2006, from the DAIG
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. On 17 August 1979, the applicant, at the age of 32, was commissioned a second lieutenant in the USAR. He had previously completed 1 year and 11 months in the Regular Army and 10 years and 1 month in the USAR in an enlisted status. He was promoted to lieutenant colonel effective 3 September 2002.
3. On 15 March 1993, the applicant was notified he had completed the required qualifying years of service to be eligible for retired pay on application at age 60.
4. Headquarters, 77th U.S. Army Regional Readiness Command, Fort Totten, NY Orders 04-323-00007, dated 18 November 2004, transferred the applicant to the Retired Reserve effective 18 November 2004. The reason stated on the orders was: completion of 20 or more years of qualifying service for retired pay at age 60. The applicant was 57 years of age and had completed 33 years,
1 month, and 21 days of qualifying service.
5. On 27 February 2006, the applicant applied for retired pay to begin on
12 December 2006, his 60th birthday.
6. A letter, dated 30 June 2006, provided by the applicant, from the DAIG stated the applicant was involuntarily transferred to the Retired Reserve without proper counseling.
7. A letter, dated 18 October 2006, from U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), approved the applicant's request for retired pay.
8. HRC-STL Orders P10-690590, dated 18 October 2006, placed the applicant on the Retired List on 20 December 2006 in the grade of lieutenant colonel.
9. A letter, dated 20 October 2009, provided by the applicant, from the acting Command IG, USARC responded to his request for reinstatement to an active drill status. The USARC IG advised the applicant the Officer Management Branch, Military Personnel Management Division, Headquarters had informed him his final course of action was to file an application for relief to the ABCMR. No reasons were given as to why the applicant was placed in the Retired Reserve.
10. Army Regulation 140-10 (Army Reserve, Assignments, Attachments, Details, and Transfers) lists reasons for mandatory removals from active status. Soldiers removed from active status under this regulation will be discharged or transferred to the Retired Reserve if eligible. First lieutenants, captains, majors, and lieutenant colonels are removed 30 days after their 53rd birthday if age 25 or older at initial appointment.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be reinstated on an active drill status and receive pay and allowances he was denied and any promotions he would have been eligible for after being improperly placed in the Retired Reserve.
2. The letter from the DAIG states the applicant was improperly transferred to the Retired Reserve without counseling. The type of counseling is not known.
3. The USARC IG's response to the applicant's request for reinstatement did not provide a reason for his transfer to the Retired Reserve or the reason they could not provide relief. The USARC IG simply referred him to the ABCMR.
4. The facts and circumstances surrounding the applicant's transfer to the Retired Reserve are not available. However, it is noted the applicant had reached his mandatory removal date based on his being 53 years of age on
20 December 1999. In the absence of evidence to the contrary, it appears he was allowed to remain in an active status until November 2004 through administrative oversight.
5. 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 that 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.
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