IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100006995 


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.

2.  The applicant states records of his service in the Missouri Army National Guard (MOARNG) were not available [when he was discharged from the U.S. Army Reserve (USAR)].  He wishes to come out of his retired status and serve his country again.

3.  The applicant provides copies of his Twenty Year Letter; an ARPC Form 
249-E (Chronological Statement of Retirement Points); a DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter from the U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL); and e-mails from the 88th Regional Support Command (RSC) and U.S. Army Reserve Command (USARC).

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 enlisted in the MOARNG on 31 January 1972.  He served in the MOARNG until he was transferred to the USAR effective 31 May 1979.  He served in the USAR in an active and inactive status until he was honorably discharged on 2 April 2001.  

3.  The applicant's Official Military Personnel File (OMPF) in the interactive Personnel Records Management System (iPERMS) includes documents pertaining to his service in the MOARNG.  The record shows these documents were added to his OMPF on 1 February 1995.  The documents include a 
DD Form 214 documenting his initial entry training, a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), and an NGB Form 23 (Retirement Credits Record). 

4.  A DD Form 4 (Enlistment/Reenlistment Document) shows, on 18 December 1994, the applicant reenlisted in the USAR for a period 6 years.  Based on this document, his expiration term of service (ETS) date was 17 December 2000.  

5.  Orders 01-092-002, Headquarters, 89th RSC, dated 2 April 2001, discharged the applicant from the USAR effective 2 April 2001.  The orders show the applicant was held beyond his normal ETS date of 17 December 2000 through no fault of his own.  

6.  An ARPC Form 249-E, dated 17 August 2010, shows the applicant served a total of 29 years, 2 months, and 3 days, with 20 years of qualifying service for nonregular retirement.

7.  The record is void of documentation showing the applicant requested transfer to the Retired Reserve.

8.  The transaction history in USAHRC's Integrated Web Services (IWS) shows, on 18 June 2009, USAHRC-STL received a fax from the applicant requesting a Twenty Year Letter.  The IWS also shows the applicant followed up on his request on 17 July 2009 and again on 30 July 2009.  The IWS also shows, during 2009 and 2010, the applicant spoke with staff at USAHRC-STL several times regarding his status and correction of his orders to show he was assigned to the Retired Reserve.

9.  On or about 3 September 2009, USAHRC-STL sent the applicant a Twenty Year Letter notifying him he had completed the required years of qualifying reserve service and was eligible for nonregular retired pay at age 60.

10.  On 20 January 2010, a staff member at the 88th RSC sent an e-mail to USARC indicating the applicant had contacted him requesting revocation of his discharge order.  The e-mail shows that a retirement point discrepancy at the time of discharge had been rectified and that the applicant requested that a retirement order be published in lieu of his discharge order.  A response from USARC informed the 88th RSC that the request was disapproved, and stated further that the applicant's discharge was an ETS discharge, which was proper in the absence of a voluntary request for reassignment to the Retired Reserve.

11.  Army Regulation 135-178 (Army National Guard and Army Reserve: Enlisted Administrative Separations) states a Soldier is entitled to be discharged on the expiration of his or her service obligation, and normally will be discharged unless action is taken to retain the Soldier beyond such expiration date.  Once a Soldier receives his/her orders, such orders may not be revoked except in one or more the following circumstances:  (1) the orders are revoked by proper authority, either orally or in writing, prior to the effective date of the discharge; or (2) when one or more of the exceptions to the doctrine of administrative finality exist (i.e. fraud; mistake of law; mathematical miscalculation; and/or substantial new evidence discovered contemporaneously within a short time following the action).  After the effective date of discharge, orders may be amended by the separation authority only to correct administrative errors, such as errors concerning grade, social security number, or misspelled name.

12.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers), covers policy and procedures for assigning and transferring USAR Soldiers.  It states that transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer.

13.  Chapter 6 of Army Regulation 140-10 stipulates that eligible Soldiers must request assignment to the Retired Reserve provided they have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  The qualifying Soldier must then complete a DA Form 2651 (Request for Reserve Component Assignment or Attachment) requesting either transfer to the Retired Reserve or discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his record to show he was transferred to the Retired Reserve is not supported by the evidence. 
2.  The applicant states records of his service in the MOARNG were unavailable when he was discharged and implies that the absence of these records affected his discharge.  The evidence of record shows key documents, such as his NGB Form 23, were added to his OMPF on 1 February 1995, well before he was discharged.  The reason for the delay in issuing his Twenty Year Letter is unclear.  Regardless of the reason, eligibility for nonregular retirement pay is independent of eligibility for transfer to the Retired Reserve.

3.  At the time of his discharge in 2001, the applicant had over 29 years of active Reserve Component service and was eligible to request transfer to the Retired Reserve.  The evidence of record does not show that he did so.  As a result, after reaching his ETS, he was discharged as required by law and regulation.

4.  The applicant's desire to return to military service is admirable.  However, in the absence of evidence showing he was improperly discharged or improperly denied the opportunity to request transfer to the Retired Reserve, there is no basis for granting 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)                                         AR20100006995



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ABCMR Record of Proceedings (cont)                                         AR20100006995



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