IN THE CASE OF:	   

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120006157 


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, in effect, correction of his records to show he was transferred to the Retired Reserve.

2.  The applicant states he wants to withdraw his request for an honorable discharge and submit a request for reassignment to the Retired Reserve.  He believed an honorable discharge with 20 years of service was the same as the Retired Reserve.

3.  The applicant provides:

* memorandum, Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve
* memorandum, Referral for Military Occupational Specialty (MOS) Medical Retention Board (MMRB) – (Applicant)
* memorandum, Medical Physical Documentation Review for (Applicant)
* June and September 2004 DA Forms 3349 (Physical Profile)
* memorandum, Notification of MMRB Proceedings
* temporary duty orders
* memorandum, Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* memorandum, Notification of Medical Unfitness for Retention
* memorandum, Letter of Acknowledgement of Notification of Medical Unfitness for Retention
* memorandum, Request for Discharge from the Army Reserve, (Applicant)
* DA Form 4651-R (Request for Reserve Component Assignment or Attachment)
* U.S. Army Reserve (USAR) medical discharge and discharge orders
* email correspondence between himself and a USAR human resource specialist
* memorandum, Request for Re-Characterization of Involuntary Separation from the U.S. Army in the Case of (Applicant) from "Honorable Discharge" to "Retired Reserve"
* U.S. Army Human Resources Command (HRC) memorandum, Amendment to Discharge Orders for (Applicant)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the USAR in pay grade 
E-3 on 5 January 1983.

2.  On 6 June 2004, he was assigned a permanent physical profile of "113111" for chronic back pain and degenerative joint disease of the knees, bilateral.  It was determined that a medical evaluation board or physical evaluation board was not needed.  He was referred to an MMRB.

3.  On 13 September 2004, he was advised that he did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and of his options.

4.  On 10 February 2005, he was issued a 20-year letter.

5.  A memorandum, Headquarters, U.S. Army 77th Regional Readiness Command, dated 14 February 2005, subject, Notification of Medical Unfitness for Retention, advised the applicant that as a result of his medical examination, he was medically disqualified for continued service in the USAR due to his chronic back pain and degenerative joint disease in the knees.  The memorandum also advised him of the following options:

* elect to be reassigned to the Retired Reserve if otherwise eligible for retirement based on qualifying years of service
* elect to be discharged from the USAR with an Honorable Discharge Certificate
* elect to be considered by a non-duty related physical evaluation board

6.  On 16 February 2005, he elected to be honorably discharged from the USAR.

7.  Orders 05-054-00013 issued by Headquarters, USAR Command, dated 23 February 2005, released him from his USAR unit of assignment for the purpose of medical discharge effective 23 February 2005.

8.  Orders 05-097-00005 issued by Headquarters, 98th Division (Institutional Training), dated 7 April 2005, honorably discharged him from the USAR effective 7 April 2005.  These orders show the authority for his discharge as Army Regulation 135-178 (Army National Guard (ARNG) and USAR – Enlisted Administrative Separations).

9.  A Chronological Statement of Retirement Points, dated 11 September 2011, shows he was credited with 20 years of qualifying service for retirement as of his retirement year ending 4 January 2005.

10.  On 28 November 2011, he submitted a request to HRC through counsel for a change in his discharge characterization from Honorable Discharge to Retired Reserve.  Counsel stated the applicant had more than 20 years of creditable service at the time of his separation under Army Regulation 135-178; therefore, the 98th Division lacked the legal authority to effect the applicant's involuntary separation from the Army.

11.  On 10 February 2012, the Chief, Reserve Component Retirement, HRC, advised the applicant's counsel that:

	a.  After reviewing the applicant's records, it showed he received a 20-year letter prior to being discharged and should have been given the opportunity to transfer to the Retired Reserve.  Since his unit cut his orders, they would be responsible for amending them to reflect the Retired Reserve.  There was nothing HRC could do to change his orders.

	b.  If the unit was uncooperative in amending his orders, the applicant's only recourse was to petition the ABCMR.  The Board was the only means that could direct the unit to amend the orders.

12.  The applicant will reach age 60 on 27 December 2014.

13.  Army Regulation 135-180 (ARNG and USAR – Qualifying Service for Retired Pay Nonregular Service) states that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a Reserve Component Soldier.  The requirement to serve the last 8 years in a Reserve Component has since been amended by Title 10, U.S. Code, section 12731, to 0 years in the case of a person who completed the service requirements on or after 26 April 2005, to 6 years in the case of a person who completed the service requirements on or after 6 October 1994 and before 25 April 2005.

14.  Army Regulation 140-10 (USAR – Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 addresses the removal of Soldiers from an active status and states, in part, 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 applicant was qualified for transfer to the Retired Reserve based on his completion of 20 qualifying years of service for Reserve retired pay as of 4 January 2005.  In September 2004, he was determined to be medically unfit for retention in the USAR.  He was advised of his options and he elected to be honorably discharged from the USAR.

2.  He contends that he believed an honorable discharge with 20 years of service was the same as the Retired Reserve.  It appears that had the applicant clearly understood his options, he likely would have requested to be transferred to the Retired Reserve.

3.  The applicant meets the eligibility requirements for assignment to the Retired Reserve.  It would now be equitable and just to correct his military records by revoking his discharge from the USAR on 7 April 2005 and assigning him to the Retired Reserve effective the same date.

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 revoking his 7 April 2005 discharge from the USAR and showing he was transferred to the Retired Reserve effective 7 April 2005.



      ____________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)                                         AR20120006157



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ABCMR Record of Proceedings (cont)                                         AR20120006157



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