IN THE CASE OF:
BOARD DATE: 14 July 2011
DOCKET NUMBER: AR20110000343
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, his Army National Guard discharge orders be revoked and he be transferred to the Retired Reserve effective 18 January 1995.
2. The applicant states:
* He was mistakenly discharged instead of being put in the Retired Reserve
* It was a mistake the military made, not him
* He is ready to retire and having spent 21 years and 1 deployment with the military he requested to be put in the Retired Reserve
* Instead, by no fault of his own, he was discharged
* He didn't know that until he went to fill out his retirement paperwork
3. The applicant provides no documentary evidence.
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 applicants 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 applicants 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 4 April 1951. Having prior service in the U.S. Army Reserve, he enlisted in the Utah Army National Guard (UTARNG) on 19 January 1982 in the rank of staff sergeant. He served in Southwest Asia from
15 September 1990 to 17 April 1991.
3. His Notification of Eligibility for Retired Pay at Age 60 (20-year letter) is dated 22 February 1994.
4. His request for discharge is not available.
5. His discharge orders are not available. However, his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the ARNG and as a Reserve of the Army in the rank of staff sergeant on 18 January 1995 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26x, for expiration of service obligation. Item 9 (Command to Which Transferred) of his NGB Form 22 shows the entry "NONE."
6. On 4 April 2011, the applicant was placed on the Retired List.
7. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states, in pertinent part, that eligible Soldiers must request transfer/assignment to the Retired Reserve.
DISCUSSION AND CONCLUSIONS:
1. He contends he requested transfer to the Retired Reserve but he was discharged instead. However, there is no evidence and he provided no evidence to support this contention.
2. Evidence shows he was honorably discharged from the UTARNG and as a Reserve of the Army on 18 January 1995.
3. In the absence of evidence to the contrary, such as his request for transfer to the Retired Reserve, it must be presumed that his request for discharge from the ARNG was properly processed. Therefore, there is no basis for granting the applicant's request.
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) AR20110000343
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