BOARD DATE: 17 March 2011
DOCKET NUMBER: AR20100020342
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 reconsideration of an earlier request that he:
* be placed in an active drill status
* receive pay and allowances he was denied
* receive any promotions he would have been eligible for after being improperly placed in the Retired Reserve
2. He states, in effect, he received the Board's decision to deny his application and it seems the denial was based on the premise he failed to submit his application in a timely manner and he disagrees with this. He contends:
* he immediately filed a complaint to the 77th Regional Readiness Command Inspector General (IG) when he discovered he was improperly placed in the Retired Reserve with no explanation
* after a period of time his complaint was forwarded to the U.S. Army Regional Command IG who eventually sent it to the Department of the Army IG (DAIG)
* the DAIG found he was improperly placed in the Retired Reserve and when he received their decision he submitted an application to the Board
* at that time he was told he needed to exhaust his chain of command appeals which he did
* as soon as he received the U.S. Army Reserve Command (USARC) decision he immediately applied to the Board which was within the 3-year time limit
* he did not allow any time to pass in the pursuit of his complaint
* the only delays were at USARC headquarters where his complaint was apparently stalled for as long as they could as a delaying tactic to use up the clock on his complaint
3. The applicant provides a letter, dated 19 July 2010, in support of his request for reconsideration.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090020477, on 13 July 2010.
2. He contends his original application was denied based on the premise he failed to submit his application in a timely manner which is a new argument that will be considered by the Board.
3. He was born on 20 December 1946. On 17 August 1979, at the age of 32, he was commissioned a second lieutenant in the U. S. Army Reserve (USAR). He had previously completed 1 year and 11 months in the Regular Army and
10 years and 1 month in the USAR in an enlisted status.
4. On 15 March 1993, he was notified he had completed the required qualifying years of service to be eligible for retired pay on application at age 60.
5. He was promoted to lieutenant colonel effective 3 September 2002.
6. He was transferred to the Retired Reserve effective 18 November 2004. The reason stated on the orders was: completion of 20 or more years of qualifying service for retired pay at age 60. The applicant was 57 years of age and had completed 33 years, 1 month, and 21 days of qualifying service.
7. On 27 February 2006, he applied for retired pay to begin on 12 December 2006, his 60th birthday.
8. A letter, dated 30 June 2006, provided by the applicant, from the DAIG stated he was involuntarily transferred to the Retired Reserve without proper counseling.
9. He was placed on the Retired List on 20 December 2006 in the grade of lieutenant colonel.
10. Paragraph 7-1b of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states Soldiers removed from active status will be discharged or transferred to the Retired Reserve. Paragraph 7-2f(1)(b) of Army Regulation 140-10 states that lieutenant colonels and below will be removed from an active status for length of service after their 53rd birthday if age 25 or older at initial appointment. The regulation also states that eligible Soldiers must request transfer/assignment to the Retired Reserve.
DISCUSSION AND CONCLUSIONS:
1. He contends his original application was denied based on the premise he failed to submit his application in a timely manner. This is not true. The ABCMR waived the statute of limitations for timely filing and conducted a substantive review of his case. Based on the date he was transferred to the Retired Reserve (18 November 2004), he had until 18 November 2007 to file an application in a timely manner.
2. It is noted the DAIG determined he was involuntarily transferred to the Retired Reserve without proper counseling.
3. He contends he should be placed in an active drill status. However, he was commissioned at age 32. Based on the governing regulation, lieutenant colonels and below will be removed from an active status for length of service after their 53rd birthday if age 25 or older at initial appointment. Although he was transferred to the Retired Reserve on 18 November 2004, it appears he reached his mandatory removal date on 20 December 1999 (after his 53rd birthday).
4. The governing regulation states Soldiers removed from an active status will be discharged or transferred to the Retired Reserve. These were the only two choices upon which the applicant could have been advised. Remaining in an active status was not an option. Therefore , there is no basis for granting his requests.
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 to amend the decision of the ABCMR set forth in Docket Number AR20090020477, dated 13 July 2010.
_______ _ _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) AR20100020342
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ABCMR Record of Proceedings (cont) AR20100020342
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