IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005225 


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 Retired Reserve.

2.  The applicant states he completed the required years of qualifying Reserve service for transfer to the Retired Reserve in 2002.  However, he was honorably discharged from the U.S. Army Reserve (USAR) on 12 March 2002 because he was not issued a letter of eligibility for retired pay at age 60 until February 2007.

3.  The applicant provides copies of his:

* USAR Personnel Command, St. Louis, Missouri, Orders D-03-211477, dated 12 March 2002
* ARPC Form 249-E (Chronological Statement of Retirement Points), dated 11 January 2007
* 20-year letter, dated 15 February 2007

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 29 May 1953.  He enlisted and served honorably in the Regular Army from 18 July 1975 through 17 July 1979.

3.  He was transferred to the USAR on 18 July 1979 and served in an active status.  His last reenlistment in the USAR was on 10 March 1996 for a period of
6 years.

4.  Headquarters, 99th Regional Support Command, Oakdale, Pennsylvania, Orders 00-346-049, dated 11 December 2000, reassigned the applicant to the USAR Control Group (Annual Training), effective 20 March 2000, based on completion of his contractual obligation.

5.  USAR Personnel Command, St. Louis, Missouri, Orders C-12-034971, dated
14 December 2000, reassigned the applicant to the USAR Control Group (Reinforcement), effective 14 December 2000.

6.  USAR Personnel Command, St. Louis, Missouri, Orders D-03-211477, dated
12 March 2002, honorably discharged the applicant from the USAR, effective
12 March 2002.

7.  The applicant's Chronological Statement of Retirement Points shows that, as of 12 March 2002, he had completed 20 years and 2 days of qualifying service for retirement.

	a.  The last year he earned a minimum of 50 points was during retirement year ending (RYE) 15 June 1997, when he earned 69 total creditable points.
	
   b.  For RYE 15 June 1998 through RYE 15 June 2001 he earned                 15 membership/total points each year and 11 additional membership/total points through 12 March 2002.

   c.  For RYE 15 June 1998 he also earned 4 inactive duty points.

8.  On 15 February 2007, the Director, Personnel Actions and Services, USAR Personnel Command, St. Louis, Missouri, 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 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) established by Public Law 95-397.  

9.  On 7 June 2007, a member of the 99th Regional Service Support Command informed the applicant that he had been discharged on 12 March 2002 due to expiration of term of service (ETS).  The applicant was also informed he could apply to the ABCMR to request transfer to the Retired Reserve.

10.  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.

11.  Army Regulation 135-178 (Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.
   
   a.  Chapter 1 (General Provisions), paragraph 1-3, provides that orders discharging a Soldier would not be revoked or the effective date changed, after the effective date of discharge, unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.

   b.  Chapter 4 (Expiration of Service Agreement), paragraph 4-1, provides that a Soldier will be discharged from the Army upon expiration of the later of the term of contractual service or the statutory military service obligation.
   
12.  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 Retired Reserve.

2.  On 15 February 2007, a letter was issued notifying the applicant that his eligibility for retired pay had been established upon attaining age 60.

	a.  The applicant's last qualifying year of active service in the USAR was RYE 15 June 1997.

	b.  On 12 March 2002, he was honorably discharged from the USAR based on ETS.

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

3.  Despite the absence of a timely request by the applicant to transfer to the Retired Reserve, 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 13 March 2002.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 showing he requested transfer to the Retired Reserve, his request was approved, and he was transferred to the Retired Reserve effective 13 March 2002.



      _____________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)                                         AR20120005225



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ABCMR Record of Proceedings (cont)                                         AR20120005225



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