IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007207 


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, correction of her military records to show that she was transferred to the U.S. Army Reserve (USAR) (Retired).

2.  The applicant states, in effect, that she informed her Reserve unit that she was requesting retirement.  She subsequently was briefed on her benefits as a retired Soldier, received retired identification cards, and out-processed her Reserve unit.  During her out-processing she did not receive any type of orders and she had no idea that she had not been retired.  She was utterly upset and disappointed when she realized that there was a possible error in her out-processing.

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty); Notification of Eligibility for Retired Pay at Age 60; discharge orders; AHRC Form 249-E (Chronological Statement of Retirement Points; orders assigning her to the USAR Control Group (Reinforcement);
DD Form 2 (Reserve Retired) (United States Uniformed Services Identification Card), issued on 6 August 2003; and a DD Form 1173-1 (United States Uniformed Services Identification and Privilege Card), issued on 25 July 2007.

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 14 October 1980, the applicant enlisted in the Regular Army.  She completed her initial training and she was awarded military occupational specialty 75C (Personnel Management Specialist).  She served on active duty through a series of reenlistments and she was discharged due to the expiration of her term of service on 27 March 1993.  She had attained the rank/grade of sergeant (SGT)/E-5.  She had completed 12 years, 5 months, and 14 days of creditable active service.

3.  On 28 March 1993, the applicant enlisted in the USAR.  Subsequently, she was assigned to Headquarters and Headquarters Company, 87th Division (Training Support), located in Birmingham, AL.  She had attained the rank/grade of staff sergeant (SSG)/E-6.

4.  On 31 August 2000, the applicant was sent a letter notifying her of her eligibility for retired pay at age 60.  This letter informed her of the requirement to earn a minimum of 50 points each retirement year to retain an active status.

5.  Orders 01-147-005, issued by Headquarters, 87th Division (Training Support), Birmingham, AL, dated 27 May 2001, released the applicant from her current assignment and transferred her to the USAR Control Group (Reinforcement), commonly called the Ready Reserve.

6.  Orders D-05-219022, U.S. Army Reserve Personnel Command, St. Louis, MO, dated 3 May 2002, honorably discharged the applicant from the USAR.

7.  AHRC Form 249-E, dated 29 December 2005, indicates the applicant had earned 21 years of qualifying service for retirement.  Her date of birth is shown as 21 October 1960, indicating that she will be eligible to apply for retired pay in the year 2020.

8.  In processing this case, on 22 June 2010, an advisory opinion was obtained from the Chief, Transition and Separations, U.S. Army Human Resources Command, St. Louis.   The advisory official stated that the applicant had been 


discharged from the USAR for failing to maintain a qualifying year as required by law and so stated in her 20-year letter.  It further stated that if the applicant has documentary evidence showing that she had requested a transfer to the Retired Reserve, then her discharge orders should be revoked and she should be transferred to the Retired Reserve.  If the applicant does not have any such documentation, her current status should remain.

9.  On 23 July 2010, the applicant responded to the advisory opinion, stating that she had ensured all of her records were updated to reflect her contact information.  She completed a retirement packet and she was issued retired identification cards for herself and her spouse.  She was never contacted about any potential problem.  She contends that she completed 21 good years in the U.S. Army and she received a 20-year letter.  Her military career was her life since 1979.  She was absolutely shocked when she was informed there was a problem with her retirement.  She is asking that her biggest achievement in life, along with the well-being of her family, not be wiped out by denying her a retirement.

10.  On 29 October 1999, the Under Secretary of Defense, in a memorandum and attachments, stated that former members of the Reserve Components who are eligible to receive retired pay at age 60 but who had terminated their Reserve status are still entitled to receive benefits.  DD Form 2 is issued to former members with the designation of "Former Member" above the Service Shield.  This card grants unlimited exchange; morale, welfare, and recreation privileges; and commissary access.  DD Form 1173-1 is issued to the family members of Former Members and grants the same privileges.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her military records should be corrected to show she was transferred to the U.S. Army Reserve (Retired).
 
2.  There is no available evidence and the applicant did not provide any evidence showing she requested to be transferred from her Reserve unit to the Retired Reserve.

3.  The applicant was transferred to the Ready Reserve in 2001 and she was subsequently discharged in 2002 due to her failing to earn 50 points allowing her to retain an active status.


4.  The uniform services identification cards currently held by the applicant and her spouse incorrectly show her status as Retired Reserve.  They should have been issued with the designation of "Former Member."

5.  Even though the applicant is not in an active status, she is entitled to receive retired pay at age 60.  Therefore, she currently holds the status of a "Former Member" and is entitled to benefits as such.  When she reaches age 60 and applies for retired pay, she will be placed on the Retired List at which time she can obtain a Retired Reserve identification card through her local military identification card facility.

6.  In view of the foregoing, there is no basis for transferring the applicant to the Retired Reserve.

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)                                         AR20100007207



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ABCMR Record of Proceedings (cont)                                         AR20100007207



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