IN THE CASE OF:	  

		BOARD DATE:	  14 DECEMBER 2010

		DOCKET NUMBER:  AR20100013729


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 her U.S. Army Reserve (USAR) status be changed from "discharged" to "Retired Reserve" effective May 2002.

2.  The applicant states:

	a.  She received her 20-year letter in October 2001.  In November 2001, she was transferred from the 428th Transportation Company, Hannibal, MO, to the 724th Transportation Company, Quincy, IL, where she served as the unit administrator.

	b.  She was scheduled to reenlist in May 2002, but she ended up in the hospital for a week.  She contacted the unit to explain her situation and she couldn't make it in to reenlist.  She was told she couldn't reenlist anyway because she did not have a current Army Physical Fitness Test (APFT) on file.

	c.  She requested an extension until she got out of the hospital and could arrange to take the APFT, but the unit denied her request.  She states the unit told her they were transferring her to the Retired Reserve and would send her the paperwork.

	d.  She discovered in 2006 that her unit did not transfer her to the Retired Reserve, but instead discharged her.

3.  The applicant provides:

* a copy of her Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* a copy of her U.S. Army Human Resources Command (AHRC) 
Form 249-2-E (Chronological Statement of Retirement Points)
* a copy of a 30 May 2007 letter to the 88th Regional Readiness Command
* five pages of email messages

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 was born in June 1953 and enlisted in the USAR on 31 July 1981.  On 3 October 2001, she was a staff sergeant (SSG/E-6) serving in military occupational specialty (MOS) 88M (Motor Transport Operator) when she received her 20-year letter.

3.  The applicant's interactive Personnel Electronic Records Management System (iPERMS) record contains Headquarters, 89th Regional Support Command, Wichita, KS, Orders 00-322-053, dated 17 November 2000, reassigning her from the 428th Transportation Company, Detachment 1 (Light/Medium Truck), Hannibal, MO, to the 724th Transportation Company, Detachment 1 (Medium Truck), Quincy, IL, effective 17 November 2000.

4.  The applicant's iPERMS record shows her expiration of term of service (ETS) date as 17 May 2002.  The record does not show she extended her enlistment or reenlisted.  However, her AHRC Form 249-2-E shows her years of service commencing in 1981, with each full year beginning on 31 July and ending on the following 30 July.  This continued for 20 full years through 30 July 2001; however her 21st year which began on 31 July 2001 ended on 9 July 2002.

5.  The applicant's iPERMS record shows she last passed the APFT in January 2000.

6.  The 724th Transportation Company deployed to Southwest Asia in support of Operation Iraqi Freedom.  The unit arrived in Kuwait on 20 February 2004 and on 5 March 2004, proceeded to Logistics Support Area Anaconda, Iraq, as part of the 7th Transportation Battalion, 172nd Corps Support Group, 13th Corps Support Command, to begin missions delivering fuel to various coalition installations in Iraq.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Transitions and Separations, AHRC, St. Louis, MO.  The opinion states the applicant was a unit [military] technician and a troop program unit (TPU) member.  She was hospitalized and during her hospitalization her request for an extension to take the APFT was denied and she was subsequently discharged.  No discharge order can be found in her iPERMS record nor are there any documents that reflect why her unit discharged her or if she requested discharge.  The opinion surmises it is unlikely she requested discharge as she would have lost her military technician position.  The advisory opinion recommends granting the applicant's request for retroactive transfer to the Retired Reserve.  The applicant was provided an opportunity to respond to the advisory opinion, but she did not do so.

8.  Depending on a Reservist's date initially entered military service (DIEMS), monthly USAR retired pay is calculated using one of two formulas, the "Final Basic Pay" formula or "High-3" formula as follows:

* DIEMS before 8 September 1980

* multiply your years of satisfactory/equivalent service by 2.5 percent, up to a maximum of 75 percent
* multiply the result by the basic pay in effect on the date your retired pay begins (normally age 60)

* DIEMS Date on or after 8 September 1980

* multiply your years of satisfactory/equivalent service by 2.5 percent up to a maximum of 75 percent
* multiply the result by the average of your highest 36 months of basic pay (NOTE:  the highest 36 months of basic pay for a Soldier who transfers to the Retired Reserve until age 60 will normally be the 36 months before age 60 since longevity service and pay raises continue to accrue; Soldiers who elect discharge before age 60 will have their highest 36 months of basic pay based on the date of discharge – longevity service stops and future pay raises will not be considered)

9.  Thus, Soldiers with a DIEMS on or after 8 September 1980 should think carefully before requesting a discharge in lieu of retirement as taking a discharge adversely impacts retired pay.

10.  Title 10, U.S. Code, section 688, provides that the Retired Reserve consists of retired Soldiers from the Army (Active Army, USAR, and Army National Guard) who remain part of the Army Reserve family.  All Reserve officers and enlisted personnel who receive pay on the basis of active duty and/or Reserve service, and all Reserve officers and enlisted personnel who are otherwise eligible for retired pay, but are not yet age 60 and have not elected discharge, may be ordered to active duty whenever required as determined by the Secretary of the Military Department.

11.  Army Regulation 140-315 (Employment and Utilization of USAR Military Technicians) establishes policies and prescribes procedures for the employment, utilization, and separation of military technicians by the USAR.

	a.  Effective 1 September 1970, military membership in a USAR unit is required for permanent appointment as a military technician.  Exceptions are:

* headquarters clerical and other positions exempted because the incumbent will not be mobilized
* military technicians permanently employed prior to 1 September 1970
* temporary appointments
* technicians initially employed after 8 December 1983 in a TPU must be a member of that TPU

	b.  Technicians initially employed after 8 December 1983 in a support activity must be a member of the Selected Reserve (TPU or Individual Mobilization Augmentation (IMA) Program).  Provisions of this regulation referring to unit membership are to be interpreted to mean the following:

* in the case of military technicians employed by units, TPU membership
* in the case of other military technicians, either TPU or IMA membership

12.  USAR unit administrators are typically responsible for performance of a variety of technical, analytical, advisory, liaison, and coordinating duties for the USAR unit commander in accomplishing the overall functions of the unit.  They plan and establish priorities; assign, distribute, and review work of subordinate unit sections and personnel.  They review incoming directives, policies, and instructions, and research, analyze, monitor or assist in the development and implementation of standard operating procedures to cover a variety of activities for the unit.  They perform record management duties, to include establishing, maintaining, consolidating and purging personnel, finance, individual mobilization, and medical records in accordance with regulatory requirements and policies; manage unit and individual training; interpret training directives and guidance; and assist the Commander in establishing unit and individual training goals and objectives.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her record by revoking her discharge and transferring her to the Retired Reserve retroactively to her ETS date in 2002.

2.  The facts of this case are as follows:

* she was a SSG motor transport operator serving in a transportation unit
* she was the unit administrator
* she last passed the APFT in January 2000
* she qualified for retirement in October 2000
* she was transferred in November 2000 to a transportation unit that would subsequently deploy to Iraq in February 2004
* her ETS date was 17 May 2002
* she was discharged from the USAR on 9 July 2002, although no discharge orders are available

3.  Discharge from the USAR carried adverse financial ramifications for the applicant.  Because her DIEMS was after 8 September 1980, discharge had the effect of freezing her starting retired pay calculation at the highest 36 months of basic pay as of July 2002.  Had she been placed in the Retired Reserve, her starting retired pay calculation would be based on the highest 36 months of basic pay as of June 2013.  However, by accepting discharge vice placement in the Retired Reserve, she eliminated the possibility of an unwanted recall to active duty and subsequent deployment with her unit to Iraq.

4.  The applicant states she was the unit administrator.  The unit administrator is a critical position within a USAR unit and serves as the command group's full-time representative.  As such, the unit administrator is expected to be knowledgeable of the workings of the unit, to include personnel, training, reenlistment, mobilization status, etc.  She knew or should have known she was due to reenlist in May 2002 and had not passed an APFT since January 2000.  She should have taken APFTs in July 2000, January 2001, July 2001, and January 2002.  Her 1-week hospitalization in May 2002 should not have been a factor in her effort to reenlist.

6.  Absent the applicant's discharge paperwork, regularity is presumed in the manner in which her discharge was accomplished.  Notwithstanding the advisory opinion of the Chief, Transitions and Separations, AHRC, the applicant's request for retroactive transfer to the Retired Reserve should not be favorably considered.

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 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)                                         AR20100013729



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ABCMR Record of Proceedings (cont)                                         AR20100013729



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