BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100020372 


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 his records to show he was transferred to the Retired Reserve on 1 September 2001 instead of being discharged from the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, that he was honorably discharged from the USAR without having been notified and contends that he would have elected transfer to the Retired Reserve if he had been properly informed and counseled.  He also states that upon his initial retirement in 1993 he was informed that he did not have enough time for retirement and it took him 4 years to have the errors corrected and to be issued a Notification of Eligibility for Retired Pay at Age 60 memorandum (commonly known as the 20-year letter.)  He goes on to state that in October 1999 he responded to an address notification/verification form sent to him from the Army Reserve and he may have mistakenly elected to be discharged without knowing or being properly informed of his options.

3.  The applicant provides:

* A copy of orders, dated 7 December 1993, discharging him from the Florida Army National Guard (FLARNG), effective 8 December 1993, and transferring him to the USAR Control Group (Reinforcement)
* His 20-year letter
* A copy of an ARPC Form 3725-E (Army Reserve Status and Address Verification), dated in 1999


* A copy of his Honorable Discharge Certificate, dated 1 September 2001
* Copies of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* A copy of his DD Form 214 MC [Marine Corps] (Armed Forces of the United States Report of Transfer or Discharge)

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 on 6 March 1951 and he was serving in the FLARNG in the rank of captain when he was honorably discharged on 8 December 1993.  He was transferred to the USAR Control Group (Reinforcement).  His discharge orders indicate that he resigned his commission with the FLARNG to accept promotion to the rank of major (MAJ) in the USAR.  His records indicated at the time that he had 19 creditable years of service for retired pay purposes.

3.  The applicant was promoted to MAJ on 9 December 1993 and on 9 July 1997 he was issued a 20-year letter, a Retirement Handbook, and other required documents by the FLARNG.  However, there is no evidence in his official record to show that it was ever filed in his official record.  There is also no evidence to show that he actively participated in the USAR.  He was only awarded membership points from 1993 to 2001.

4.  On 1 September 2001, after being twice non-selected for promotion and not being selected for continuation, the applicant was honorably discharged in the rank of MAJ.

5.  On 25 March 2011, the FLARNG dispatched the necessary forms to the applicant for him to apply for non-regular retired pay as he turned 60 years of age on 6 March 2011.

6.  In the processing of this case, on 10 March 2011, a staff advisory opinion was obtained from the U.S. Army Human Resources Command at Fort Knox, KY.  The advisory official opines that at the time the applicant was discharged from the USAR, there was no record of him having a 20-year letter and thus discharge was required due to his being twice non-selected for promotion and not being selected for continuation.

7.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 25 March 2011, the applicant responded to the effect that when he retired from the FLARNG in October 1993 he was told that he had met the requirements for retirement and in December 1993 he was told that he had only 19 years of service which began a 4-year saga with the FLARNG that resulted in his receiving a 20-year letter in 1997.  He also states that he believed at the time he was being retired from the FLARNG and not being discharged.

8.  Army Regulation 135-155 provides, in pertinent part, that USAR and Army National Guard officers serving in the ranks of first lieutenant, captain, and MAJ, who have completed their statutory service obligation, will be discharged for failing to be selected for promotion after a second consideration by a Department of the Army Reserve Components Selection Board.  An officer who is removed from active status due to nonselection for promotion will be discharged if he or she is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date he or she is being removed from active status.

9.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of that regulation relates to the removal of Soldiers from active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  It also provides that members of the Retired Reserve Control Group are subject to recall to an active status until they reach age 60.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


2.  The applicant’s contention that he was unaware at the time of his discharge from the ARNG that he was being transferred to the USAR has been noted and found to lack merit.  His discharge orders clearly indicated that he was being transferred to the USAR to accept a promotion to the rank of MAJ.

3.  His contention that he should not have been discharged from the USAR and that he was unaware that he had to request transfer to the Retired Reserve has also been noted.  However, the applicant’s records did not contain a 20-year letter at the time he was discharged and there is no evidence that he requested transfer to the Retired Reserve or provided a copy of his 20-year letter for inclusion in his official records.

4.  While the sincerity of his claim that he was not informed of the requirement to request transfer to the Retired Reserve is not in doubt, the passage of time and the lack of diligence on the applicant’s part in ensuring that his records were up to date make it difficult at best to determine what happened in his case.

5.  Additionally, the fact that the applicant waited from 2001 to 2010, after reaching retirement age, and was not subject to recall if needed, suggest that the applicant was properly discharged at the time.

6.  Therefore, in the absence of sufficient evidence to show that he was not properly informed that he must request transfer to the Retired Reserve or be discharged, it must be presumed that what the Army did in his case was correct at the time.

7.  Accordingly, there appears to be no basis to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x______  __x______  ___x_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  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)                                         AR20100020372



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ABCMR Record of Proceedings (cont)                                         AR20100020372



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