IN THE CASE OF:	  

		BOARD DATE:  7 February 2013

		DOCKET NUMBER:  AR20120013061 


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 her records to show she was transferred to the Retired Reserve.

2.  The applicant states she completed the required qualifying years of Reserve service for transfer to the Retired Reserve in 2005; however, she was not counseled on her separation options.  She was honorably discharged from the U.S. Army Reserve (USAR) on 14 September 2006.

	a.  She contacted her unit and the U.S. Army Human Resources Command in an effort to correct the mistake, but she was unsuccessful in getting her military status changed.

	b.  She is now within 5 years of being eligible to apply for Army retired pay.

3.  The applicant provides a copy of her discharge orders.

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 9 June 1957.

3.  She enlisted in the USAR Delayed Entry Program on 21 August 1984.  She was discharged from the USAR on 30 September 1984 and enlisted in the Regular Army on 1 October 1984.  She was honorably released from active duty on 30 May 1989 and was transferred to a USAR unit.

4.  On 22 September 2005, the Director, Personnel Actions and Services, U.S. Army Human Resources Command, St. Louis, MO, notified the applicant of her eligibility for retired pay upon application at age 60.  She was reminded that since she had completed 20 years of qualifying service, she must earn a minimum of 50 points each retirement year to retain an active status and the requirement could be waived only once for valid reasons.

5.  The applicant's Chronological Statement of Retirement Points shows that she completed 20 years and 1 day of qualifying service for retirement as of 14 September 2006.

	a.  The last year she earned a minimum of 50 points was during the retirement year ending (RYE) 20 August 2005 when she earned 85 total creditable points.

	b.  She earned one membership point the period 21 August 2006 through 14 September 2006.

6.  Headquarters, 104th Division (Institutional Training), Vancouver, WA, Orders 06-257-00006, dated 14 September 2006, honorably discharged the applicant from the USAR effective 14 September 2006.  The additional instructions show:  "Soldier was held beyond normal discharge date through no fault of the Soldier."

7.  A review of the applicant's military personnel records failed to reveal any evidence that she requested transfer to the Retired Reserve.

8.  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.

9.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), chapter 6 (Transfer to and from the Retired Reserve), provides policy and procedures for the transfer to and from the Retired Reserve.

	a.  Paragraph 6-1 (Eligibility) provides that assignment to the Retired Reserve is authorized and eligible Soldiers 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 her records should be corrected to show she was transferred to the Retired Reserve.

2.  On 22 September 2005, the U.S. Army Human Resources Command notified the applicant of her eligibility for retired pay upon application at age 60.

	a.  The applicant's last qualifying year of active service in the USAR was RYE 20 August 2005.

	b.  On 14 September 2006, the applicant was honorably discharged from the USAR after having been held beyond her normal discharge date through no fault of her own.

	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 she requested transfer to the Retired Reserve effective 15 September 2006.

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 she requested transfer to the Retired Reserve, her request was approved, and she was transferred to the Retired Reserve effective 15 September 2006.



      _______ _  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)                                         AR20120013061



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ABCMR Record of Proceedings (cont)                                         AR20120013061



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