IN THE CASE OF:	  

		BOARD DATE:	    15 May 2012

		DOCKET NUMBER:  AR20110020929 


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 correction of his records to show he was transferred to the U.S. Army, Retired Reserve.

2.  The applicant states he completed the required years of qualifying Reserve service for transfer to the Retired Reserve in 1999.  However, on 14 March 2000, he was honorably discharged and he had no idea this would happen.

3.  The applicant provides no additional documentary evidence in support of his request.

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 18 September 1945 and served honorably in the Regular Army from 10 March 1977 through 4 March 1980.

3.  He was transferred to the U.S. Army Reserve (USAR) on 5 March 1980 and served in an active status.  His last reenlistment in the USAR was on 8 January 1995.

4.  On 4 March 1999, the Director, Personnel Actions and Services, USAR Personnel Command, St. Louis, Missouri, notified the applicant that his eligibility for retired pay had been established upon attaining age 60.

	a.  He was reminded that since he had completed 20 years of qualifying service, he must earn a minimum of 50 points each retirement year to retain active status and that the requirement could be waived only once for valid reasons.

	b.  He was also informed of his entitlement to participate in the Reserve Component Survivor Benefit Plan (RCSBP) established by Public Law 95-397.  

5.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows that, as of 14 March 2000, he had completed 20 years and 
27 days of qualifying service for retirement.

	a.  The last year he earned a minimum of 50 points was during the retirement year ending (RYE) 1 February 1999, when he earned 77 total creditable points.

	b.  For RYE 1 February 2000 he earned 25 total points and 2 additional points through 14 March 2000.

6.  Headquarters, 81st Regional Support Command, Birmingham, Alabama, Orders 074-12L, dated 14 March 2000, honorably discharged the applicant from the USAR, effective 14 March 2000.  The authority cited was Army Regulation 135-178 (Enlisted Administrative Separations).

7.  An email message, dated 2 February 2011, shows the Supervisor, Personnel Actions Branch, Field Services Division, U.S. Army Human Resources Command, Fort Knox, Kentucky, informed the applicant that his former command discharged him on 14 March 2000 due to expiration of term of service (ETS).  The applicant was also informed he could apply to the ABCMR to request transfer to the Retired Reserve.

8.  A review of the applicant's military personnel records failed to reveal any evidence that he requested transfer to the U.S. Army, Retired Reserve.
9.  Army Regulation 135-178, Chapter 4 (Expiration of Service Agreement), paragraph 4-1, provides that a Soldier will be discharged from the Army upon expiration of the later of the term of contractual service or the statutory military service obligation.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), Chapter 6 (Transfer to and from the Retired Reserve), provides policy and procedures on the transfer to and from the Retired Reserve.

	a.  Paragraph 6-1 (Eligibility) shows that assignment to the Retired Reserve is authorized, and an eligible Soldier must request transfer, if they (in part):

	 	(1)  are entitled to receive retired pay from the U.S. Armed Forces because of prior military service; or

	 	(2)  have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.

	b.  Paragraph 6-2 (Orders and certificates) provides that orders transferring Soldiers to the Retired Reserve will cite this paragraph and state the reason for transfer.  When retirement and mandatory removal are concurrent, the order will also show the reason for mandatory removal.  Soldiers transferred to the Retired Reserve will be furnished a DA Form 977 (Certificate of Transfer to Retired
Reserve), except that a DA Form 977 is not required for Soldiers transferred to the Retired Reserve in the same grade as shown on their DD Form 363A (Certificate of Retirement).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was transferred to the Retired Reserve.

2.  On 4 March 1999, a letter was issued notifying the applicant that his eligibility for retired pay had been established upon attaining age 60.

	a.  The applicant's last qualifying year of active service in the USAR was RYE 1 February 1999.

	b.  On 14 March 2000, he was honorably discharged from the USAR based on ETS.

	c.  There is no evidence the applicant requested transfer to the Retired Reserve.
3.  Despite the absence of a timely request by the applicant to transfer to the Retired Reserve, based on the evidence of record, it would be appropriate to correct the applicant's records to show he requested transfer to the Retired Reserve, effective 15 March 2000.

4.  As a matter of information, an RCSBP election must have been made within 90 days of receipt of notification of eligibility for retired pay.  If an RCSBP election was not submitted within the 90 calendar days, the individual will not be entitled to survivor benefit coverage until he applies for retired pay at age 60.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he requested transfer to the Retired Reserve; his request was approved; and he was transferred to the U.S. Army, Retired Reserve, effective 15 March 2000.




      _______ _   _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)                                         AR20110020929



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ABCMR Record of Proceedings (cont)                                         AR20110020929



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