BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100019344 


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 that Department of the Army (DA), Headquarters, 98th Division (Institutional Training) Orders 04-260-00040 be amended to show he retired, instead of showing he was discharged.

2.  The applicant states:

* he was never called or talked to about his intentions at the end of his 20 years in the military
* it was never his intent to be discharged from the Army and he did speak with the unit administrator about his retirement
* he thought he was retired until he started a job near Fort Meade
* at the end of his last enlistment he was having a hearing problem and he was working with Army and civilian doctors to find the best solution for him
* his problem impacted his ability to instruct so he retired
* if his hearing had not been a problem he would still be working for the U.S. Army Reserve (USAR)

3.  The applicant provides:

* DA, Headquarters, 98th Division (Institutional Training) Orders 
04-260-00040, dated 16 September 2004
* DA Form 4651.R (Request for Reserve Component Assignment or Attachment)


* DD Forms 4/1 and 4/2 (Enlistment/Reenlistment Document)
* two DA Forms 4856 (Developmental Counseling Form)
* a memorandum to his former commanding general dated 15 September 2004
* email correspondence between his former unit administrator and the personnel systems sergeant

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 Regular Army on 10 July 1984.  He enlisted in the USAR on 7 July 1986 and he remained a member of the USAR through extensions and reenlistments.

3.  On 25 March 2004, the U.S. Army Human Resources Command furnished the applicant a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  He was told he had completed the required years of service necessary to qualify for retired pay at age 60.

4.  The DA Form 4856 submitted by the applicant, dated 25 July 2004, shows that he elected to be discharged at the expiration of his term of service (ETS) in March 2004 after speaking with the “Unit DARN.”  In the DA Form 4856 the counselor stated the applicant had received his Twenty Year Letter and that he should process his retirement packet.  The counselor stated a determination should be made as to whether the applicant had completed his retirement packet.  He also stated the applicant should be asked if he was willing to continue serving as an Individual Mobilization Augmentee or in a point’s only unit. The counselor stated the applicant was unavailable for a face to face counseling since he lived in Rochester, NY.



5.  A DA Form 4856 submitted by the applicant dated 9 August 2004 shows his counselor submitted a request for the applicant's discharge at his ETS date in May 2004.

6.  On 15 September 2004, the commanding general approved a Request for Exception to Stop Loss pertaining to the applicant’s retirement or ETS discharge.

7.  Email correspondence, dated 16 September 2004, shows the unit administrator was directed to publish a discharge order on the applicant.  

8.  On 16 September 2004, Headquarters, 98th Division (Institutional Training) published Orders 04-260-00040 directing the applicant’s honorable discharge from the USAR effective on that date.  The applicant's orders show he was held beyond his normal ETS date through no fault of his own.

9.  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 states that Soldiers removed from an active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  His supporting documents have been considered.

2.  However, the evidence of record suggests the applicant elected to be discharged instead of retirement.  The evidence also suggests that attempts were made to contact him for the purpose of obtaining a retirement packet.

3.  Attempts were made to determine whether he wanted to be discharged or to retired.  His former unit administrator was directed to publish orders discharging him from the USAR, and he was discharged effective 16 September 2004 after reaching his ETS date.

4.  The applicant records do not show he requested a transfer to the Retired Reserve as required by the applicable regulation.  He has not shown error or injustice in the action taken by the Army in his case.  

5.  In view of the foregoing, his request should be denied.


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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100019344



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