IN THE CASE OF:	  

		BOARD DATE:  22 February 2012

		DOCKET NUMBER:  AR20110015987 


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 the following:

* orders for assignment to the Individual Ready Reserve (IRR) at his current grade and date of rank at the time of his discharge
* orders for assignment to the Retired Reserve
* an amended DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2007, to show assignment to the Retired Reserve 

2.  The applicant states:

* he was discharged at Fort Campbell in 2007 with 20 years, 4 month, and 8 days of cumulative U.S. Army Reserve and Active Army service
* in accordance with Federal law in place at the time (National Defense Authorization Act for Fiscal year 2005), he was fully qualified for non-regular Reserve retirement and gray-area benefits at the time of discharge
* he was provided erroneous information at the time of separation relative to his eligibility for a Reserve retirement and gray-area benefits due to a regulation not being updated

* Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) had not been updated and still has not been updated to reflect the change in law


* he was subsequently made aware that he was eligible for a Reserve retirement and gray-area benefits
* he secured a "Twenty-Year" letter from the Human Resources Command (HRC) indicating he was fully qualified for a Reserve retirement at age 60 and qualified to receive gray-area benefits
* per guidance provided by HRC in coordination with issuing the "Twenty-Year" letter, he went through Transition Services at Fort Rucker to amend/correct his original separation orders
* Fort Rucker Transition Services worked with Fort Campbell Transition Services and the original discharge order was rescinded

* corrected orders that would allow implementation of the "Twenty-Year" letter were not published
* Fort Campbell believed this was beyond their authority

* he contacted HRC to attempt to have the appropriate discharge order published

*	HRC also declined to publish the orders and referred him to the
   Army Review Board

* he submitted the issue to the Army Review Board which confirmed he was fully qualified for Reserve retirement and gray-area benefits and opined that Fort Campbell was the authorized Headquarters to complete his discharge

*	the findings did not overtly direct Fort Campbell to publish the orders

* when he made subsequent contact with Fort Campbell for the necessary orders, they once again declined to publish a corrected order
* in all of his efforts to date, no one appears to dispute he is fully qualified for a Reserve retirement with gray-area benefits
* there appears to be  enough agreement that there was some error to the original orders, at least to the point that they were rescinded
* this agreement falls short of publishing a corrected order that would allow him to access the Reserve retirement (at the appropriate age) and gray-area benefits to which he entitled
* he requested assistance from his representative

* the first response provided to his representative stated that orders assigning him to the IRR are required in order for HRC to transfer him to the Retired Reserve List
* the second response provided to his representative was provided by Fort Campbell, which stated Fort Campbell's Transition Services cannot amend or create an order assigning him to the IRR because he did not contact the IRR prior to his separation

* he was advised by Army National Guard and Army Reserve offices Fort Campbell that he must actively serve his last 8 years in the Army Reserve to complete his eligibility for Reserve retirement even though he had already attained 20 plus years of qualifying service
* he was simply given the wrong information by the Fort Campbell transition point and based on that information, he chose not to affiliate with the Army Reserve
* had he received counseling based on current and correct Federal law he would have gladly elected to affiliate with the Army Reserve and this would have placed him in the IRR
* he believes his current situation is untenable
* he has a "Twenty-Year" letter and a set of orders which rescinds his original discharge orders
* he has attempted to have his service records corrected in order to receive entitled service benefits for over 4 years now and has put forth an honest, patient, and determined effort to resolve this issue within the confines of the Army's established processes

3.  The applicant provides:

* self-authored statements
* three DD Forms 214
* Orders Number 332-0660, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, dated 28 November 2006
* Twenty-Year letter, dated 30 August 2007
* ARPC Form 249-2-E (Chronological Statement for Retirement Points)
* Orders Number 353-0600, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, dated 19 December 2007
* ABCMR letter, dated 10 August 2010
* letter, Headquarters, U.S. Army Human Resources Command, dated 11 April 2011
* letter, Fort Campbell Installation, Fort Campbell, KY, dated 1 June 2011
* extract of Retirement Information Personnel and Services Directorate, Compendium of Information
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* Officer Record Brief (ORB)
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 enlisted in the U.S. Army Reserve on 18 June 1987.  He completed training and was awarded military occupational specialty 55R (Ammunition Stock Control and Accounting Specialist).  On 9 October 1987, he was relieved from active duty training and transferred to the 326th Ordnance Company.

3.  The applicant enlisted in the Regular Army on 18 November 1993.  On 2 December 1993, he applied for an appointment as a warrant officer.   On 10 February 1994, he was honorably discharged to accept a commission as a warrant officer.  The highest enlisted rank/grade he attained while on active duty was sergeant/E-5. 

4.  Orders Number 035-00242-A-1982, Headquarters, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, AL, dated 4 February 1994, shows the applicant was ordered to active duty as a warrant officer (WO1) student.  

5.  On 11 February 1994, the applicant was appointed as a Reserve warrant officer (WO1) in the U.S. Army.  He was promoted to chief warrant officer-2 (CW2) on 22 February 1996. 

6.  Orders Number 340-046, U.S. Total Army Personnel Command, Alexandria, VA, dated 6 December 2001, show the applicant was selected for promotion to CW3 with an effective date and date of rank of 1 January 2002.  The applicant executed an Oath of Office on 4 January 2002.

7.  On 13 September 2006, the applicant declined promotion to CW4.  On 14 September 2006, the applicant's commanding officer approved the applicant's declination of promotion.

8.  The applicant's DA Form 2648, dated 26 September 2006, shows the applicant declined Reserve affiliation.

9.  Orders 332-0660, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, dated 28 November 2006, reassigned the applicant to the Fort Campbell Transition Center for discharge processing.

10.  On 31 January 2007, the applicant was honorably discharged from the Regular Army for miscellaneous/general reasons.

11.  On 30 August 2007, the applicant was notified of his eligibility for retired pay at age 60 (Twenty-Year Letter).

12.  Orders Number 353-0600, Headquarters, 101  Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, dated 19 December 2007, rescinded Orders Number 332-0660 which discharged the applicant.

13.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers), covers policy and procedures for assigning and transferring USAR Soldiers.  It states that transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer.

14.  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 Ready Reserve to the Retired Reserve is based on the Soldier's status.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for assignments to the Individual Ready Reserve and Retired Reserve and amendment of his DD Form 214 was carefully considered. 

2.  The evidence of record shows he voluntarily chose not to have Reserve affiliation at the time of his discharge.  In the absence of evidence showing he was improperly discharged or improperly denied the opportunity to request transfer to the Individual Ready Reserve or Retired Reserve, there is no basis for granting the requested relief.  

3.  Further, the applicant is advised that the continuation of pay increases for members serving in the Retired Reserve are based on the continued availability 


of those members for recall to an active status in emergency situations.  Therefore, given there is insufficient evidence to show he was unjustly denied the opportunity to request transfer to the Retired Reserve and because he was not available for recall between his discharge and retirement, it would not be appropriate to correct his record solely for the purpose of entitling him to credit for service he did not perform and for pay increases he did not earn.  

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)                                         AR20110015987



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ABCMR Record of Proceedings (cont)                                         AR20110015987



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