IN THE CASE OF:	 
	
		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110023824 


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 2011, when he applied for a military identification (ID) card to show his retired status, he was informed he was not in a Retired Reserve status and that he had been discharged from the U.S. Army Reserve (USAR).  He submitted a request for correction of his military status to the U.S. Army Human Resources Command (HRC), but his request was denied because more than 3 years had elapsed since his discharge.

3.  The applicant provides:

* his "Twenty Year" letter, dated 27 June 2001
* Orders D-04-800053, issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, dated 9 April 2001
* Defense Enrollment Eligibility Reporting System (DEERS) appointment for 4 May 2011

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 14 January 1957.  He had honorable active duty and reserve enlisted service in the Regular Army and the Army National Guard (ARNG) from 20 August 1975 through 23 June 1984.

3.  The applicant was appointed as a USAR second lieutenant on 24 June 1984.

4.  He was promoted to the rank of major on 31 August 1998.

5.  On 27 June 2001, the Director, Personnel Actions and Services, U.S. Army Reserve Personnel Command, St. Louis, 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 an 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).

6.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows that, as of 17 April 2001, he had completed 21 years, 8 months, and 1 day of qualifying service for retirement.

7.  In the processing of this case, on 7 September 2011, an advisory opinion was obtained from HRC, Fort Knox, KY.  The Chief, Leader Development Division, advised that the applicant's status should not be changed without documentation of his service and discharge.

8.  On 16 September 2011, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments and supporting documents.
9.  The applicant responded by providing a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and requested that his application be processed by the Board.

10.  In support of his application the applicant provides:

	a.  Orders D-04-800053, dated 9 April 2001, that show he was discharged from the USAR Active Guard Reserve, effective 17 April 2001; and

	b.  his DD Form 214 that show he was honorably discharged from active duty and the USAR on 17 April 2001, under the provisions of Army Regulation
600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, by reason of unacceptable conduct.  He completed:

* 10 years, 10 months, and 15 days of net active service this period
* 4 years, 2 months, and 26 days of total prior active service
* 10 years, 6 months, and 17 days of total prior inactive service

	c.  An appointment schedule that shows he had an appointment on 4 May 2011 at the Pass and ID Office, Naval Support Facility, Indian Head, MD.

11.  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.

12.  Army Regulation 600-8-24, Chapter 4 (Reasons for Elimination), paragraph 4-2b, provides that elimination action may or will be initiated based on misconduct, moral or professional dereliction, or in the interests of national security.

13.  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 Army National Guard of the United States (ARNGUS) and USAR, except for officers serving on active duty or active duty for training exceeding 90 days.  Chapter 2 (Involuntary Separation - ARNGUS and USAR Officers), paragraph 2-16 (Initial actions by area commander), shows the area commander on recommendation for involuntary separation received from commanders or appropriate agencies at Headquarters, Department of the Army, will [in part] advise the officer in the above notification, if appropriate, that he may elect to submit a resignation in lieu of involuntary separation; or, if eligible, elect transfer to the Retired Reserve; or to have the case acted on by a board of officers.

14.  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 U.S. Army Retired Reserve.

	a.  The applicant was involuntarily discharged from the USAR on 17 April 2001.

	b.  There is no evidence the applicant was advised by his commander that he could elect transfer to the Retired Reserve in accordance with the guidance in Army Regulation 135-175.

	c.  There is also no evidence the applicant requested transfer to the Retired Reserve.

2.  On 27 June 2001, subsequent to his discharge, a letter was issued notifying the applicant that his eligibility for retired pay had been established upon attaining age 60.  Thus, it appears that Army officials failed to provide the applicant timely notification of his eligibility to transfer to the Retired Reserve. 

3.  Therefore, 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 18 April 2001.

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 18 April 2001.



      ____________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)                                         AR20110023824



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ABCMR Record of Proceedings (cont)                                         AR20110023824



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