IN THE CASE OF:
BOARD DATE: 4 October 2012
DOCKET NUMBER: AR20120004518
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 his status of discharged under other than honorable conditions be changed to transferred to the Retired Reserve. He also requests he be allowed to transfer to the Retired Reserve in his previous rank/grade of sergeant first class (SFC)/E-7.
2. The applicant states he had received his 20-year letter on 3 July 2008 and was not given the opportunity to apply for retired pay at age 60. He was discharged in absentia. He was not afforded the opportunity to appear before an administrative discharge board to plead his case.
3. The applicant provides his:
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 13 November 2005
* 20-year letter, dated 8 July 2008
* orders for reduction to private (PV1)/E-1 and discharge
* Chronological Statement of Retirement Points (ARPC Form 249-E)
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. He enlisted in the U.S. Army Reserve (USAR) on 21 April 1995. His date of birth shows he was born in 1964. He had previously completed 8 years,
11 months, and 6 days of active service and 10 months and 4 days of inactive service.
3. He served in Iraq from 29 October 2004 to 15 October 2005. His last reenlistment in the USAR, on 17 November 2007, was for an indefinite term.
4. On 3 July 2008, he was notified he had completed the required years of qualifying reserve service and was eligible for retired pay on application at
age 60 in accordance with Title 10, U.S. Code, chapter 1223 (20-year letter).
5. He provided Headquarters, 315th Sustainment Command (Expeditionary), Coraopolis, PA Orders 10-889-00001, dated 30 March 2010. These orders:
a. Reduced him in rank from SFC to PV1 effective 30 March 2010.
b. Discharged him from the USAR effective 6 April 2010 with an under other than honorable conditions discharge.
6. His discharge processing package is not contained in his Army Military Human Resource Record (AMHRR).
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
8. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states in paragraph 10-15 that when the separation authority determines a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade. Further board action is not required for this reduction.
DISCUSSION AND CONCLUSIONS:
1. He contends he was not given the opportunity to apply for retired pay at
age 60. His AMHRR shows he will not turn 60 until 2024. Therefore, his contention is mute.
2. His discharge processing package is not available for review. Therefore, the exact circumstances leading to his discharge are unknown. However, his reduction to PV1 is in accordance with the regulation in that he received an under other than honorable conditions discharge.
3. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is presumed that the Army's administrative processing of him for discharge was correct. In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.
4. He has the burden of proving an error or injustice by a preponderance of the evidence.
5. There are no provisions in law or regulation entitling an enlisted Soldier to transfer to the Retired Reserve in lieu of an involuntary discharge.
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.
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