IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120004780 


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 discharge orders from the U.S. Army Reserve (USAR) to show he was transferred to the Retired Reserve.

2.  The applicant states after reaching 20 years in the Alabama Army National Guard (ALARNG), he requested transfer to the USAR Control Group (Reinforcement) to accept a promotion to major (MAJ).  The applicant continues that he remained in the USAR Control Group until he was discharged for being a two-time non-select for promotion to lieutenant colonel (LTC).

3.  The applicant states he expected to receive a packet in the mail for him to make an election to be placed in the Retired Reserve.  He had sufficient time in the ALARNG to be placed in the Retired Reserve and he would have elected to transfer to the Retired Reserve if he had received notification.  By not being placed in the Retired Reserve, he will not be able to draw his retirement in the amount that he should when he turns 60 years of age.  It will be based on the amount when he was discharged from the USAR Control Group.  The applicant concludes his every intention was to be placed in the Retired Reserve, but he did not receive a packet or notification.

4.  The applicant provides:

* ALARNG memorandum, dated 15 July 1992
* ALARNG Orders 089-190, dated 30 March 1993
* U.S. Total Army Personnel Command (PERSCOM) (now known as U.S. Army Human Resources Command (HRC)) memorandum, dated 10 April 2000
* two PERSCOM memoranda, dated 28 February 2002 and 4 February 2003
* U.S. Army Reserve Personnel Command (ARPERSCOM) (now also known as HRC) Orders D-02-306148, dated 12 February 2003
* National Guard Bureau Form 23B (ARNG Retirement Points History Statement) prepared on 16 November 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 appointed as a second lieutenant in the ALARNG on 26 June 1976.

3.  A memorandum from the ALARNG, dated 15 July 1992, shows the applicant received his Notification of Eligibility for Retired Pay at Age 60.

4.  Orders 089-190 issued by the ALARNG, dated 30 March 1993, show the applicant was honorably separated from the ARNG effective 21 March 1993 and transferred to the USAR Control Group (Reinforcement).

5.  A memorandum from PERSCOM, dated 10 April 2000, shows the applicant was promoted to the rank of MAJ effective 13 September 1998.
 
6.  A memorandum from PERSCOM, dated 28 February 2002, shows the applicant was notified that he was not selected for promotion to LTC.

7.  A memorandum from PERSCOM, dated 4 February 2003, shows the applicant was notified that he was not selected a second time for promotion to LTC.

8.  Orders D-02-306148 issued by ARPERSCOM, dated 12 February 2003, show the applicant was discharged from the USAR effective 1 August 2003.

9.  There is no evidence in the applicant's military service records that show he notified to make an elect to be transferred to the Retired Reserve.

10.  On 30 April 2012 during the processing of this case, an advisory opinion was obtained from the Chief, Leader Development Division, HRC.  The official recommended denial and stated a review of the applicant's records revealed that the applicant was considered, but non-selected by the 2002 and 2003 LTC promotion boards.  There were no transactions in HRC's Soldier Management System (SMS), which show he requested transfer to the Retired Reserve after his second non-select for promotion to LTC.  The official further stated there was no comment in the SMS showing he was sent any correspondence from HRC explaining he had to make an election to transfer to the Retired Reserve.

11.  Title 10, U.S. Code, section 14505, states that an Army MAJ who has failed of selection for promotion to the next higher grade for the second time shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states, in pertinent part, MAJs who have failed selection for promotion to LTC for the second time and whose names are not on a list of officers recommended for promotion to LTC, will be separated.

13.  Army Regulation 135-175 (Separation of Officers) states officers in the grade of first lieutenant, captain, or MAJ, who completed their statutory military obligation, will be discharged for failure to be selected for promotion after the second consideration by a Department of the Army Reserve Components Selection Board.

14.  Army Regulation 135-175 further states an officer with 20 years of qualifying Federal service for retire pay who is being considered for involuntary separation will be given an opportunity to elect transfer to the Retired Service in lieu of involuntary separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his discharge orders to show he was transferred to the Retired Reserve was carefully considered and it was determined there is sufficient evidence to support his request.
2.  Notwithstanding the advisory opinion's recommendation, in view of the fact that the applicant was not notified to be given the opportunity to elect to be transferred to the Retired Reserve the requested relief should be granted.  

3.  Therefore, it would serve the interest of equity and fairness to correct his records to reflect he elected to be transferred to the Retire Reserve.  Orders     D-02-306148 issued by ARPERSCOM, dated 12 February 2003, should be amended to show the applicant was transferred to the Retired Reserve effective 1 August 2003.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 amending Orders D-02-306148 issued by ARPERSCOM, dated 12 February 2003, to show the applicant was transferred to the Retired Reserve effective 1 August 2003.



      ____________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)                                         AR20120004780



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ABCMR Record of Proceedings (cont)                                         AR20120004780



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