IN THE CASE OF:	  

		BOARD DATE:	    23 February 2012

		DOCKET NUMBER:  AR20110015716 


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, revocation of his Puerto Rico Army National Guard (PRARNG) discharge orders and transfer to the Retired Reserve.

2.  The applicant states when he was separated from the PRARNG he should have been transferred to the Retired Reserve.  He was never properly counseled or given the opportunity to transfer to the Retired Reserve.  He was told he is ineligible for certain benefits because of this error. 

3.  The applicant provides his:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* 24 August 2000 PRARNG discharge orders
* an undated memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60
* NGB Form 23B (ARNG Retirement Points History Statement)

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 record shows he was born on 21 July 1956.

3.  He was appointed as a second lieutenant in the PRARNG and he executed an NGB Form 337 (Oaths of Office) on 5 December 1978.  He served in a variety of stateside assignments and he attained the rank/grade of major (MAJ)/O-4.

4.  On 1 October 1987, the PRARNG issued the applicant a 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.

5.  On 25 March 1999, by letter from the U.S. Total Army Personnel Command, St. Louis, MO, he was notified he was considered for promotion to the next higher grade by the October 1998 Reserve Components Selection Board (RCSB); however, he was not selected.

6.  On 9 May 2000, by letter from the U.S. Total Army Personnel Command,
St. Louis, he was notified he was considered for promotion to the next higher grade by the September 1999 RCSB; however, he was not selected.

7.  On 24 August 2000, he was honorably separated from the ARNG.  He was not transferred to any other component.  His NGB Forms 22 and 23B show he completed 22 years, 2 months, and 13 days of total service for pay.

8.  On 8 March 2001, by letter from the U.S. Total Army Personnel Command, St. Louis, he was notified that he was considered for promotion to the next higher grade by the September 2000 RCSB; however, he was not selected.

9.  There is no evidence of record that shows he requested a transfer to the Retired Reserve at the time.

10.  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 Soldiers from the Selected, Standby, and Retired Reserve to an appropriate control group.

11.  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.

12.  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 certain 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 at least twice not selected for promotion to the next higher grade.  He was first notified of his non-selection by the October 1998 RCSB on 25 March 1999.  He was then notified of his second non-selection by the September 1999 RCSB on 9 May 2000.

2.  As required by law, he was discharged on 1 September 2000 after having been non-selected by the September 1999 RCSB.  He was eligible for a transfer to the Retired Reserve; however, there is no evidence of record and he did not provide any evidence to show he requested a transfer to the Retired Reserve at the time. 

3.  Although he was considered for promotion to MAJ a third time by the September 2000 RCSB, it appears officials at the U.S. Total Personnel Command may not have been aware of his earlier discharge.  In any case, this does not negate the fact that he had been twice non-selected for promotion or the fact that he never requested a transfer to the Retired Reserve.

4.  He does not provide corroborating evidence of his contention that he was not properly counseled.  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 so.  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.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110015716



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ABCMR Record of Proceedings (cont)                                         AR20110015716



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