BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120000274 


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 that his discharge from the U.S. Army Reserve (USAR) be revoked and that he be reinstated in the Retired Reserve.

2.  The applicant states, in effect, that subsequent to his transfer from the USAR he received a letter from the U.S. Air Force (USAF) demonstrating their need for dental officers to serve on active duty.  In an attempt to enter the USAF, he requested to be discharged from the USAR and his request was granted.  In spite of over 3 years of effort and receiving assistance from his Congresswoman, his attempt to enter the USAF on active duty was denied by the Secretary of the USAF due to his age.  When he received his 20-Year Letter, he assumed he would automatically be transferred into the Retired Reserve after being discharged.  He was not aware that he needed to request to be transferred into the Retired Reserve before being discharged.

3.  Subsequent to being denied entrance into the USAF, the applicant requested reinstatement in the Retired Reserve, but his request was denied by the U.S. Army Human Resources Command (HRC).  He contends that having lost his status in the Retired Reserve, he and his wife were required to forfeit their identification cards and lost access to military installations.  He also sustained the loss of any cost of living increases to his retirement which will have a negative impact on his retirement pay.  He contends his case encompassed actions that were handled either in an incompetent manner or in what may even be construed as an unethical manner.  As a result, he is left with a denial of recruitment and reduced benefits at a time when the USAF is still trying to recruit dental officers.

4.  The applicant provides a self-authored statement and asks that the Board refer to the exhaustive records of his former Congresswoman and Senator of New Hampshire.

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 military records show he was born on 24 June 1952.  He entered into the Health Professions Scholarship Program/Financial Assistance Program on 9 February 1973 and was initially appointed as a commissioned officer in the USAR on 9 February 1977.  He continued to serve in the USAR and advanced through the commissioned officer ranks to the rank/pay grade of lieutenant colonel (LTC)/O-5.

3.  His record contains a letter from the U.S. Total Army Personnel Command (TAPC) (currently known as HRC), St. Louis, MO, dated 15 August 1994, wherein the Chief, Office of Promotions, Reserve Components informed him a Reserve Selection Board convened at Headquarters, Department of the Army (HQDA) had considered him for promotion to the rank/pay grade of colonel (COL)/O-6, but had not recommended him for promotion.

4.  His record contains a letter from TAPC, St. Louis, MO, dated 18 August 1994, wherein the Chief, Office of Promotions, Reserve Components informed him that once again, a Reserve Selection Board convened at HQDA had considered him for promotion to the rank/pay grade of COL/O-6, but had not recommended him for promotion.

5.  On 6 August 1998, the Director, Personnel Actions and Services, USAR Personnel Command, St. Louis, MO notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60 (20-Year Letter).  He was transferred in the Retired Reserve in May 1999.

6.  Review of the applicant's record on the HRC-Integrated Web Services (IWS) database shows that on 14 February 2008 he submitted a request to HRC through a Member of Congress (MOC) requesting to be released from the Army in order to join the USAF.

7.  On 22 July 2008, the Chief, The Adjutant General Directorate, West, informed the applicant his request for retention in the USAR beyond his mandatory removal date (MRD) of 1 March 2005, was being returned without action because he had already been transferred to the Retired Reserve.  As a member of the Retired Reserve, he was ineligible for retention in an active status.  His MRD based upon 28 years of commissioned service was 9 February 2005.

8.  Review of the applicant's record on the HRC-IWS database shows a letter was prepared in response to an inquiry from a MOC on his behalf.  This response explained the applicant was placed in the Retired Reserve in May 1999 and had passed his MRD based upon maximum years of service for his rank/pay grade on 9 February 2005.  Therefore, he was no longer eligible for an MRD extension.  Additionally, he was not eligible to transfer from the Retired Reserve to the Individual Ready Reserve after February 2005 because at that point, he was in the Retired Reserve by operation of the law for maximum service.  The HRC representative also stated the applicant had been offered the opportunity to participate in a retiree recall mission and declined this opportunity because he "wasn't interested in doing just 90 days at this time and he really wanted to go back on active duty for an extended period.  He also wanted the opportunity to be promoted to COL/O6 which is not possible on a retiree recall tour.

9.  Regarding the applicant's desire to be released from the Army in order to join the USAF, the MOC was informed the applicant could request to resign his commission from the USAR and be discharged from the USAR.  This would not cause him to lose eligibility for retirement benefits once he reached age 60, although it would affect cost of living allowance (COLA) increases from the date of discharge to the date he started receiving retirement benefits.  However, once discharged from the USAR, he would be free to pursue a commission in the USAF. 

10.  The applicant submitted a request for conditional release which was granted.  On 11 September 2008, he submitted a request for resignation which was also granted.  On 17 September 2008, HRC published Orders D-08-824735 which shows he was honorably discharged from the USAR, effective 15 September 2008.

11.  On 30 October 2008, a representative of HRC acknowledged receipt of the applicant's and his spouse's identification cards.

12.  On 7 February 2010, the Deputy, Army Personnel Records Division rendered a letter to a U.S. Senator in response to her inquiry on behalf of the applicant regarding his reinstatement in the Retired Reserve.  He informed the Senator that on 11 September 2008 the applicant submitted a request for discharge; his request was granted and he was separated on 15 September 2008.  As a result, his request to be transferred back to the Retired Reserve was denied.  The Senator was also advised that the applicant would have to apply to this Board if he wanted to seek a review of the HRC decision.

13.  On 2 November 2011, HRC, Fort Knox, KY, published Orders P11-942779, which show he was retired and placed on the retired list in the rank/pay grade of LTC/O-5, effective 24 June 2012.

14.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was issued a 20-Year Letter, completed over 20 years of qualifying service for retirement, and was subsequently transferred to the Retired Reserve. 

2.  Evidence also shows the only reason the applicant's Retired Reserve status changed was because he desired to pursue an active duty career in the USAF which would both help with their need for dental officers and afford him another opportunity to possibly be promoted to COL/O-6.

3.  The applicant was advised that resigning his commission in the USAR and requesting to be discharged from the Army would result in a termination of his Retired Reserve status, but would not cause him to lose eligibility for retirement benefits once he reached age 60.  However, choosing to do so would affect COLA increases from the date of discharge to the date he started receiving retirement benefits.  Having been advised of the foregoing, the applicant made a conscious decision to be removed from the Retired Reserve and resign from the USAR in order to pursue an active duty career in the USAF.  

4.  The applicant was provided orders on 15 September 2008 discharging him from the USAR in accordance with the provisions of Army Regulation 135-178. 

5.  He was subsequently retired and placed on the retired list in the rank/pay grade of LTC/O-5, effective 24 June 2012, with entitlement to retired pay and all associated benefits.

6.  It is unfortunate that the applicant's aspiration of pursuing a career in the USAF did not work out to his benefit.  However, he voluntarily elected to take a calculated risk after being advised of the potential consequences.  In doing so, he voluntarily forfeited his entitlement to COLA increases and any other entitlements associated with being a member of the Retired Reserve.  He has failed to demonstrate that either an error or injustice exists in his record; therefore, he is not entitled to have his discharge order revoked.

7.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20120000274



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ABCMR Record of Proceedings (cont)                                         AR20120000274



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