IN THE CASE OF:	

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120006724 


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, a 15-year Reserve Component retirement or that he be issued a 15-year letter.  

2.  The applicant states:

	a.  his initial retirement orders were in error.  Subsequent orders issued to correct the initial orders are either in error or were not placed in his personnel record.

	b.  in September 1996, at the inactivation of the 83rd U.S. Army Reserve Command (ARCOM), he was transferred to the 15th Psychological Operations Battalion (POB) while looking for a permanent assignment.  He opted for early qualification for retired pay when an appropriate assignment was not offered.  At that time, he had 15 years of qualifying service.  In September 1997, he was assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He has been told this was the original error.

	c.  in 1999, while researching why he had not yet received a retirement letter, he was told his orders were in error.  Amending orders were issued.

	d.  in 2002, he received discharge orders.  This alerted him to the fact he still had not resolved his correct retired status.  In August 2002, his original orders were revoked, the amended orders were revoked, and he was transferred to the USAR Control Group (Retired).  Once again he accepted that these new orders put him in the correct retired status.
	e.  in 2004, his 2002 discharge orders were voided/rescinded.  This seemed to confirm his correct retired status was indeed in place.

	f.  in March 2012, as he was reviewing his personnel records, he once again realized he had not received a retirement letter.  He contacted the U.S. Army Human Resources Command (HRC) and was told they no longer had his records. 

3.  The applicant provides:

* Reassignment orders, dated 26 June 1996, 13 September 1997, and 
      29 August 2002
* DA Form 4187 (Personnel Action), dated 21 June 1997
* Amended orders, dated 28 April 1999
* USAR discharge orders, dated 11 July 2002
* Three revocation orders, dated 29 August 2002
* Voided orders, dated 17 February 2004
* USAR Personnel Command Chronological Statement of Retirement Points

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.  Having prior commissioned service in the U.S. Naval Reserve, the applicant was appointed a captain in the USAR on 25 November 1992.  He was promoted to major on 1 April 1995.

3.  Orders, dated 26 June 1996, show he was reassigned from the 83rd U.S. ARCOM to the 15th POB effective 14 September 1996 due to involuntary inactivation.

4.  A DA Form 4187, dated 31 January 1997, shows foreign language proficiency pay (FLPP) orders were requested for the applicant.  This form shows he was assigned to the 15th POB.     

5.  He provided a DA Form 4187, dated 21 June 1997, from the Commander, Headquarters and Headquarters Company, 15th POB which indicates:

* he has 15 years of qualifying service for non-regular retired pay
* he understands that due to the inactivation or reorganization of his unit he must be reassigned
* he elected to apply for early qualification for retired pay and transfer to the Retired Reserve

6.  Orders 256-26, dated 13 September 1997, show he was released from the 15th POB and assigned to the USAR Control Group (Reinforcement) effective 
1 October 1997 due to a voluntary transfer.  These orders show he was assigned to the 15th POB.   

7.  Orders R118-01, dated 28 April 1999, show Orders 256-26 (dated 
13 September 1997) were amended to show he was assigned to the USAR Control Group (Retired Reserve).  These orders show he was assigned to the 15th POB. 

8.  Orders D-07-227743, dated 11 July 2002, show he was honorably discharged from the USAR effective 1 September 2002. 

9.  Orders, dated 29 August 2002, revoked Orders 256-26 (dated 13 September 1997) which assigned him to the USAR Control Group (Reinforcement).  These orders show he was assigned to the 15th POB.

10.  Orders, dated 29 August 2002, revoked Orders R118-01 (dated 28 April 1999) which assigned him to the USAR Control Group (Retired Reserve).  These orders show he was assigned to the 15th POB. 

11.  Orders, dated 29 August 2002, show he was released from the 15th POB and assigned in the USAR Control Group (Retired) effective 1 October 1997 due to an involuntary transfer.

12.  Orders, dated 17 February 2004, voided Orders D-07-227743 which discharged him from the USAR effective 1 September 2002.



13.  There is no 15-year letter in the available records. 

14.  His USAR Personnel Command Chronological Statement of Retirement Points, dated 19 October 2006, shows he completed 15 years of qualifying service for retired pay.

15.  In the processing of this case an advisory opinion was obtained from the Transition Assistance Management Program (TAMP) Program Manager, Retired Pay Branch, U.S. Army HRC, Fort Knox, KY.  The opinion states:

	a.  the applicant's initial unit, 83rd U.S. ARCOM, was part of the deactivation of units during the TAMP.

	b.  on 14 September 1996, he was transferred to a permanent position with the 15th POB.  After serving 10 months with this unit, he completed and signed the DA Form 4187 and the Addendum C for transfer to the Retired Reserve.  However, at this point, this was not an option.  Although he was eligible for TAMP while assigned to the 83rd U.S. ARCOM, once he transferred to the 15th POB he was no longer eligible for a 15-year letter.

	c.  the 15th POB was not a deactivating unit.  Therefore, the paperwork to receive a 15-year letter and transfer to the Retired Reserve was not authorized.

	d.  his file reflects that he opted transfer to the 15th POB rather than elect to be placed in the Retired Reserve and receive a 15-year letter.  He does not meet the criteria specified by law. 

16.  The advisory official recommends disapproval of the applicant's request for a 15-year letter.

17.  The advisory opinion was furnished to the applicant for comment.  On 
14 June 2012, he responded.  In summary, he stated:

	a.  according to the advisory opinion, his retirement problem originated with transfer orders issued by the 83rd U.S. ARCOM.  If this is true, he can accept that a mistake could have been made as the 83rd U.S. ARCOM was being deactivated and hundreds of orders were issued over a short period.  However, it is not reasonable to expect that he should have recognized the transfer orders were anything other than what he was promised.  Otherwise, he certainly would have had them amended while the issuing unit still existed.


	b.  it should be noted that until now, there has never been any communication that refuted his eligibility for a 15-year retirement letter, not to him nor either of the entities that issued or amended his retirement orders.  To the contrary, from the documents he has submitted it is clear that the 15th POB understood as he did:  that his orders put him in a temporary overstrength position while he explored the possibility of continuing his Reserve career before he opted for retirement with 15 years.  The higher headquarters that amended his retirement orders clearly considered him eligible for retirement as well.

	c.  the transfer orders issued by the 83rd U.S. ARCOM were intended to allow him to retain the option of accepting a retirement with 15 years; it is what he was promised when he accepted the transfer.  He respectfully requests he be allowed to receive the retirement he earned serving his country by whatever means available to the Board. 

18.  Title 10, U.S. Code, section 12731a was the temporary special retirement qualification authority.  It provided that, during the period 2 October 1992 through 30 December 2001, a member of the Selected Reserve who completed at least 15, and less than 20, years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.  

19.  Title 10, U.S. Code, section 12731a(c) applied to the needs of the service.  It provided that the Secretary concerned may limit the applicability of subsection 12731a to any category of personnel defined by the Secretary in order to meet a need of the Armed Force under the jurisdiction of the Secretary to reduce the number of members in certain grades, the number of members who have completed a certain number of years of service, or the number of members who possess certain military skills or are serving in designated competitive categories. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows on 21 June 1997, having completed 15 years of qualifying service for retired pay, the applicant applied for early qualification for retired pay and transfer to the Retired Reserve due to the inactivation or reorganization of his unit (15th POB).  However, there is no evidence of record and he has provided no evidence which shows the 15th POB was deactivated in 1997 or that his position in the 15th POB was only a temporary position.  Evidence shows he was still assigned to the 15th POB in 2002. 

2.  The advisory opinion states the applicant's unit (15th POB) was not a deactivating unit and therefore he was not authorized to receive a 15-year letter or transfer to the Retired Reserve.  

3.  Based on the foregoing, it appears he was not eligible for a 15-year Reserve Component retirement or 15-year letter.

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)                                         AR20120006724





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ABCMR Record of Proceedings (cont)                                         AR20120006724



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