BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110012550 


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, that his U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states that according to the memorandum he received from the California Army National Guard (CAARNG), he was led to believe that he had requested to be placed in the Retired Reserve.  He was not informed by the CAARNG that he had to request a transfer to the Retired Reserve again from the USAR.  When he received his memorandum of non-selection for promotion, it had stated that he would be either discharged or transferred to the Retired Reserve and that additional information would be forthcoming.  The next correspondence he received from the USAR was a notice that he had been discharged.

3.  The applicant provides the following documents:

* 1996 ARNG discharge orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* 1998 Non-selection memorandum
* 1998 discharge orders from the USAR
* 2000 Notification of Eligibility for Retired Pay at Age 60




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's records show he was born on 19 September 1952.

3.  Having had prior service in the U.S. Navy, the applicant was appointed as a second lieutenant in the CAARNG and executed an oath of office on 23 July 1983.  He served in a variety of stateside assignments and he attained the rank/grade of captain (CPT)/O-3. 

4.  On 10 June 1996, he was considered for promotion to the next higher grade by the March 1996 Reserve Components Selection Board (RCSB) but he was not selected.  

5.  On 1 September 1996, he resigned from the ARNG.  Accordingly, he was honorably separated from the ARNG on 1 September 1996.  His NGB Form 22 shows he was transferred to the USAR Control Group (Annual Training).  His NGB Form 22 and/or NGB Form 23A (ARNG Retirement Points History Statement) show he completed 20 years and 11 days of qualifying service for non-regular retirement.

6.  On 6 June 1997, he was considered for promotion to the next higher grade by the March 1997 RCSB but he was not selected. 

7.  On 1 September 1998, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders D-09-8S6055 ordering his honorable discharge from the USAR, effective 31 August 1998.

8.  On 24 September 1998, he was considered for promotion to the next higher grade by an RCSB but he was not selected.  His non-selection memorandum stated that as a result of this non-selection, he would be discharged in accordance with Title 10, U.S. Code (USC), section 14513 unless he is eligible for and requests transfer to the Retired Reserve.  It further added that additional information was forthcoming and provided a contact number for questions. 

9.  On 11 March 2000, the CAARNG issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him he had completed the required years of qualifying service and would be eligible for retired pay on application at age 60.

10.  There is no indication in his records that he requested a transfer to the Retired Reserve at the time.

11.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 4 prescribes policy and procedures governing the voluntary or involuntary assignment, reassignment, or transfer of a Soldier to and from the various control groups.  Section III prescribes the policy and identifies the conditions governing the transfer or reassignment of enlisted Soldiers from the Selected, Standby, and Retired Reserve to an appropriate control group.  

12.  Chapter 6 of this regulation provides for the transfer to and from the Retired Reserve.  Paragraph 6-1 (Eligibility) states that assignment to the Retired Reserve is authorized and that eligible Soldiers must request a transfer to the Retired reserve if they met the criteria for such a transfer.  Paragraph 6-4 states the criteria for transfer from the Retired Reserve to the Ready Reserve is based on the Soldier's status.  

13.  Chapter 7 of this regulation provides for the removal from active status and states that Soldiers removed from active status will be discharged or transferred to the Retired Reserve (with exceptions that do not apply to the applicant).  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was twice not selected for promotion to the next higher grade.  He was first notified of his non-selection by the March 1996 selection board on 10 June 1996.  He was then notified of his second non-selection by the March 1997 selection board on 6 June 1997.  By law, he should have been discharged after his second non-selection in 1997.  

2.  However, it appears he was approaching 20 years of service for non-regular retirement.  It also appears that he was allowed to continue to serve until he completed 20 years of qualifying service.  This explains why he was considered for promotion a third time in 1998.  

3.  He was discharged on 31 August 1998, a year after having been non-selected by the March 1997 board.  He was eligible for a transfer to the Retired Reserve; however, there is no evidence in his records and he provides none that shows he requested a transfer to the Retired Reserve at the time. 

4.  He contends that he was not informed by the CAARNG that he must request a transfer.  However, he does not provide corroborating evidence of such contention.  Absent any evidence that indicates he was not properly counseled on or given the option to transfer to the Retired Reserve at the time of his discharge, it must be presumed that his discharge from the ARNG was accomplished in accordance with the applicable law and regulation.  In addition, his NGB Form 22 shows he was transferred to the USAR Control Group (Annual Training), not the Retired Reserve.

5.  He also contends that the USAR non-selection memorandum notified him that "additional instructions were forthcoming."  This argument also lacks merit, because:

	a.  the same memorandum that notified him that additional instructions were forthcoming also provided him with contact information.  It appears he did not exercise due diligence at the time.

	b.  the applicant was a senior captain at the time of his discharge.  The applicant knew, or should have known, that a transfer to the Retired Reserve is not automatic and must be requested.  He did not do that.  There is no evidence in the available records and the applicant did not provide substantiating evidence to show he requested transfer to the Retired Reserve.

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)                                         AR20110012550



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ABCMR Record of Proceedings (cont)                                         AR20110012550



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