IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021025 


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, in effect, that his 1 September 2002 discharge from the U.S. Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve on that same date in lieu of being discharged.

2.  The applicant states, in effect, when he was in the Utah Army National Guard (UTARNG), he was advised that it would behoove him to be in the Retired Reserve so he could continue to receive Cost of Living Adjustments.  However, he contends he was not afforded an opportunity to declare whether he wanted to transfer to the Retired Reserve.  When he was discharged from the USAR Individual Ready Reserve (IRR) none of the paperwork indicated he was retired.
He attests he did not realize he was not a member of the Retired Reserve until it was pointed out to him when he submitted his retirement papers, and was informed at the time that his status was "Discharged" instead of "Retired Reserve.  

3.  The applicant provides a copy of his discharge orders. 

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 records show he was born on 21 December 1950 and he enlisted in the UTARNG on 3 May 1969.  He completed the Officer Candidate Course and was appointed as a second lieutenant in the ARNG on 16 May 1977. He continued to serve in a variety of positions and was advanced through the commissioned officer ranks eventually culminating at the rank of lieutenant colonel.

3.  On 10 January 1992, the Director of Personnel and Community Activities, UTARNG, Draper, Utah, issued the applicant his 20-Year Letter.  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  On 27 September 2000, the Office of the Adjutant General, UTARNG, published Orders 271-052 honorably separating the applicant from the UTARNG and transferring him to the USAR Control Group (Reinforcement), effective 28 February 2000.  Accordingly, his Federal Recognition as a commissioned officer in the UTARNG was withdrawn.

5.  An entry in the Total Army Database maintained by the U.S. Army Human Resources Command St. Louis, (HRC-STL), dated 25 July 2002, shows the applicant failed to respond to a notification letter that his career manager sent him regarding non-participation in required USAR training.

6.  On 19 August 2002, HRC-STL, published Orders D-08-232781, honorably discharging the applicant from the USAR, effective 1 September 2002.  

7.  The applicant's records do not reveal that he submitted a Request for Reserve Component Assignment/Attachment (DA Form 4651-R) requesting retirement or to be transferred to the Retired Reserve.

8.  The applicant's ARPC Form 249-E (Chronological Statement for Retirement Points), dated 7 June 2010, shows that during the period he was in the USAR Control Group (Reinforcement) (from 28 February 2000 to 1 September 2002) the applicant was a non-participant and he did not earn the minimum 50 points per year required for credit as a qualifying year for non-regular retirement.

9.  The applicant turns 60 years of age on 21 December 2010. 
10.  In an advisory opinion obtained from the Chief of the Transition and Separation Branch of HRC-STL, in effect, that the applicant's discharge orders are valid and should not be revoked.  The applicant had not maintained an active status by earning at least the 50 points per year which is required for credit as a qualifying year for non-regular retirement.  Therefore, he was considered a non-participant.  He was provided a notification and option letter explaining this and his options regarding this matter; however, no reply was received from him and he was appropriately discharged for non-participation.  The applicant was provided a copy of this advisory opinion and afforded an opportunity to submit a rebuttal.  He did not provide a response to the advisory opinion.

11.  Army Regulation 135-178 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  It states, in pertinent part, that the provisions of law stated in this regulation pertain to the separation of Reserve component officers.  These provisions are sections of Title 10, U.S Code (USC), except where otherwise provided.  At the time, section 3352(b) provided that an officer of the Army National Guard of the United States (ARNGUS), on withdrawal of Federal recognition, becomes a member of the Army Reserve unless he is discharged from his appointment as a Reserve of the Army.  

12.  Paragraph 4-4 of Army Regulation 135-178 provides for removal of an officer from an active status.  It states, in pertinent part, that members of the Army Reserve will be removed from an active status for failure to apply for transfer to the Retired Reserve on removal from active status.  An officer who is removed from an active status for any reason listed in this paragraph will be discharged if he is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date he is advised that he is being removed from active status, with or without the officer’s consent regardless of the length of service.  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive). 

13.  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 applicant contends his discharge orders should be revoked and he should be transferred to the Retired Reserve. 
2.  Evidence of record shows the applicant was declared a non-participant during his period of service in the USAR.  As the advisory opinion indicates, he was notified but failed to respond.  There is no evidence in the available records and the applicant did not provide substantiating evidence that shows he elected to transfer to the Retired Reserve or that he was not counseled properly regarding his options.  

3.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20090021025



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ABCMR Record of Proceedings (cont)                                         AR20090021025



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