BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100019443 


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 his records to be corrected by removing any references to show he was a member of the U.S. Army Reserve (USAR).

2.  The applicant states he never intended to become a member of the USAR after completing his 6-year service obligation with the Minnesota Army National Guard (MNARNG) and he should not be listed as "not qualified for promotion" because he did not apply for or seek promotion to the rank of first lieutenant (1LT).  He also states he never intended to become a 1LT because his 6-year term in the MNARNG ended in December 1976 and he was not required to complete his correspondence course for promotion consideration to 1LT until 1977.  He further states he does not want his children to see his name associated with the words "not qualified for promotion."

3.  The applicant provides a copy of a letter of nonselection for promotion in the USAR, dated 4 January 1977.

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 23 December 1969, the applicant signed an enlistment contract in which he acknowledged he was enlisting in the MNARNG and as a Reserve of the Army for a period of 6 years.  He was ordered to active duty for training on 26 March 1970.

3.  He completed basic training at Fort Campbell, Kentucky, and advanced individual training as an ammunition records clerk at Redstone Arsenal, Alabama, before being released from active duty on 26 July 1970 due to completion of required training.  He was returned to his MNARNG unit.

4.  On 30 June 1973, he was honorably discharged from the MNARNG for the purpose of accepting appointment as a second lieutenant (2LT).

5.  On 1 July 1973, he accepted an appointment as a USAR 2LT and was granted Federal recognition in the MNARNG as a 2LT effective the same date.  His appointment was for an indefinite period.

6.  On 5 December 1975, the applicant submitted a letter to his commander resigning his commission in the MNARNG and as a Reserve of the Army effective upon completion of his 6-year service obligation on 22 December 1975.

7.  On 11 December 1975, he was discharged from the MNARNG and was transferred to the USAR Control Group (Standby).

8.  On 30 December 1976, he was honorably discharged from the USAR due to failure to qualify for promotion to the rank of 1LT.

9.  On 4 January 1977, a letter was dispatched to the applicant informing him that because he was found not qualified for promotion to the rank of 1LT and because he had no service obligation, his discharge was required.

10.  Title 10, United States Code, section 3352 (b) (Officers; Army Reserve transfer from Army National Guard of the United States) provides, in pertinent part, that unless discharged from his appointment as a Reserve, an officer of the Army National Guard of the United States whose Federal recognition as a member of the Army National Guard is withdrawn becomes a member of the Army Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that all references to his service in the USAR should be deleted from his records because he never intended to serve in the USAR or to be promoted to the rank of 1LT have been noted and were found to have some merit.

2.  The applicant was a member of the USAR from the time he initially enlisted in the MNARNG.  Additionally, he accepted an appointment as a USAR 2LT when he was commissioned as a 2LT in the MNARNG.

3.  While the applicant may not have had intentions of serving as a member of the USAR, in fact all of his service was Reserve Component service and he was always serving as a Reserve of the Army, both in an enlisted and commissioned officer status.

4.  It is also noted that the applicant submitted his resignation requesting to be discharged from the MNARNG and the USAR upon completion of his service obligation on 22 December 1975.  However, his request for resignation was only acted upon by the MNARNG and he was discharged from the MNARNG on 11 December 1975 and was transferred to the USAR.   

5.  There is no evidence in the available records to show that any action was ever taken by the USAR to respond to the applicant’s resignation from the USAR in which he requested to be effective 22 December 1975.

6.  Accordingly, it would be in the interest of justice to correct his records by showing that he was honorably discharged from the USAR on 22 December 1975 due to completion of his service obligation and to remove all documents related to his service in the USAR after that date.

BOARD VOTE:

___x__  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his discharge from the USAR dated 30 December 1976 and replacing it with an Honorable Discharge dated 22 December 1975 due to completion of his service obligation and removing all documents related to his USAR service after that date.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms



      ___________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)                                         AR20100019443



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ABCMR Record of Proceedings (cont)                                         AR20100019443



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