IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110023090 


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 void his 10 October 2004 discharge from the U.S. Army Reserve (USAR) and to be transferred to the Retired Reserve.

2.  The applicant states he retired from the New Jersey Army National Guard (NJARNG) on 1 May 1999 and was transferred to the Retired Reserve in the rank of chief warrant officer three (CW3).  He states he requested to be transferred to the Individual Ready Reserve (IRR) in hopes of finding a unit and being promoted, but neither of those happened.  He decided to resign from the IRR.  He states he unknowingly signed an unqualified resignation form letter provided by the USAR Personnel Command (now known as U.S. Army Human Resources Command (HRC)) which he believed would transfer him to the Retired Reserve and allow him to receive his identification (ID) card and use the benefits he had earned.  He states he never intended to resign his "Retired Reserve status."  He requests assignment to the Retired Reserve so he can receive a retired ID card.

3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty); assignment orders to the Retired Reserve, dated 16 September 1969; unqualified resignation memorandum, dated 13 September 2004; National Guard Bureau Form 22 (Report of Separation and Record of Service); and eligibility for retired pay memorandum, dated 10 September 1997.



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 13 November 1956.  He was serving in the NJARNG in the rank of CW3 when he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 10 September 1997, which notified him that he was eligible to receive non-Regular retired pay upon application at age 60.

3.  On 1 May 1999, he was honorably discharged from the NJARNG and transferred to the Retired Reserve.

4.  On 5 June 2003, the applicant was transferred from the Retired Reserve to the USAR Control Group (Reinforcement) based on his request.

5.  On 24 August 2004, he was notified that he had been nonselected for promotion to the rank of chief warrant officer four (CW4).

6.  On 13 September 2004, the applicant submitted his request for unqualified resignation as a Reserve officer in the USAR.  He stated he was no longer interested in participating in any facet of the USAR.  He understood that if his resignation were accepted, he would be entitled to an honorable separation and would be furnished an Honorable Discharge Certificate.  On 10 October 2004, he was honorably discharged from the USAR.

7.  In the processing of this case, an advisory opinion was obtained from HRC which states the applicant's request should not be approved unless he can provide evidence to show he was led to believe he would be transferred to the Retired Reserve instead of being discharged as he requested.

8.  The advisory opinion was provided to the applicant for comment.  He responded that he did not know what an "unqualified resignation" was at the time of his request and he believed he was going to be returned to his former status in the Retired Reserve.  He further states he did not receive a separation briefing and thus was not advised that he would be losing benefits.  He believes the Army has a responsibility for ensuring that Soldiers are properly advised.

9.  A review of the Integrated Web Services portion of the applicant's official records shows the applicant was contacted in February 2004 regarding participating in Task Force Global Patriot.  The applicant declined and indicated he was not interested in any volunteer opportunities.  In September 2006, he contacted officials at HRC and indicated he had been given the wrong information regarding his unqualified resignation and desired to have his discharge voided and to be transferred to the Retired Reserve so he could use his benefits.

10.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of that regulation relates to the removal of Soldiers from active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

11.  Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers) provides policy, criteria, and procedures for the separation of officers of the ARNG of the United States and the USAR.  Paragraph 1-9 states, in part, that an officer whose resignation has been accepted or whose discharge has been directed will be separated on the date specified in orders or as otherwise directed by Headquarters, Department of the Army (HQDA).  The date of separation, specified or directed, will not be changed without prior approval of HQDA, nor can separation orders be revoked subsequent to the specified or directed date of separation.

12.  Due to Departmental changes implemented in 1999, certain benefits, such as commissary and post exchange privileges, accrue to Reserve members with more than 20 years of qualifying service for retirement at age 60 and who have terminated their Reserve status.  Personnel in this category are required to present their 20-year letter to the nearest military ID card facility to obtain a benefits card.

13.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  It states that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the requisite number of years of his or her qualifying service as a Reserve Component Soldier.  Soldiers who have received a 20-year letter may make application for retired pay 6 months prior to reaching age 60.

14.  Army Regulation 135-180 further states it is the responsibility of each qualified individual to submit his or her application for retired pay.  The DD Form 108 (Application for Retired Pay Benefits) is the only form on which application for this pay will be made.  Approximately 6 months prior to reaching age 60, eligible Soldiers assigned to the Retired Reserve will receive a DD Form 108 from HRC.  Individuals who do not hold a current military status may obtain a DD Form 108 from offices of State adjutants general, Reserve training centers, or from the Commander, HRC, ATTN:  AHRC-PDR-RCR, 1600 Spearhead Division Avenue, Department 420, Fort Knox, KY  40122-5402.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2.  The applicant's contentions have been noted; however, they are not supported by the evidence submitted with his application or the evidence of record.  Inasmuch as the applicant had previously requested transfer to the Retired Reserve from the NJARNG, it is reasonable to presume the applicant understood that in order to be transferred to the Retired Reserve, a voluntary request on his part was necessary.

3.  After reviewing his request for unqualified resignation, there is no doubt that the applicant understood that he would be discharged instead of being transferred to the Retired Reserve.  The language in his request leaves no doubt as to his intentions at the time.

4.  Although his discharge will have no effect on his right to apply for retired pay at age 60 or his entitlement to benefits, his failure to elect transfer to the Retired Reserve vice discharge has allowed him to not be subject to recall since his discharge in 2004.

5.  Inasmuch as the applicant is eligible for "gray area" benefits from a discharged status and his retired pay will not be jeopardized by his status, there appears to be no basis to void his duly-constituted discharge orders.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20110023090



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ABCMR Record of Proceedings (cont)                                         AR20110023090



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