IN THE CASE OF:
BOARD DATE: 18 April 2013
DOCKET NUMBER: AR20120015083
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 revocation of the orders discharging him from the U.S. Army Reserve (USAR) and issuance of orders assigning him to the Retired Reserve.
2. The applicant states:
* his last unit failed to correct and consolidate his retirement points
* he now has his 20-year letter
3. The applicant provides his:
* 20-year letter
* discharge orders
* U.S. Army Human Resources Command (formerly Army Reserve Personnel Command (ARPC)) Form 249-E (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. The applicant was born on 14 May 1957. After previously serving in the U.S. Marine Corps and Army National Guard, he enlisted in the USAR on 5 September 1982.
3. The applicant submitted the following:
a. Orders 04-265-00054 issued by Headquarters, 99th Regional Readiness Command, dated 21 September 2004, which show he was honorably discharged from the USAR effective 21 September 2004;
b. his 20-year letter from the U.S. Army Human Resources Command, dated 22 March 2012, informing him of his eligibility for retired pay at age 60; and
c. his ARPC Form 249-E, dated 24 August 2012, which shows he completed 23 years, 11 months, and 7 years of qualifying service for Nonregular retirement. The statement shows the total retirement points and USAR as his component for the retirement year ending 4 September 2004 and for the preceding 15 qualifying years.
4. His record contains an email from the U.S. Army Human Resources Command, dated 17 July 2012, which shows he requested transfer to the Retired Reserve. A staff member from the Force Sustainment Division Personnel Actions Branch stated he would have to apply to this Board for approval of his action due to the time elapsed since his discharge. His previous command would have to revoke the discharge orders and publish orders transferring him to the Retired Reserve.
5. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Chapter 7 contains guidance on removal from active status and paragraph 7-1a states that Soldiers removed from an active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.
6. Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states an individual does not need to have a military status at the time of application for retired pay to
be eligible to receive retired pay, but must have: (1) attained age 60, (2) 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. This regulation also specifies, in part, that each Reserve Component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he or she completes the service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his discharge should be revoked and he should be transferred to the Retired Reserve was carefully considered and found to have merit.
2. The evidence shows the applicant's records were corrected to show he completed 23 years, 11 months, and 7 days of creditable service for retired pay at age 60 and was eligible to transfer to the Retired Reserve. However, the evidence also shows he was discharged from the Selected Reserve 8 years before his records were corrected.
3. Therefore, his records should be corrected to show he was transferred to the Retired Reserve effective 21 September 2004.
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 Orders 04-265-00054 issued by Headquarters, 99th Regional Readiness Command, dated 21 September 2004, discharging him from the
Selected Reserve and issuing orders transferring him to the Retired Reserve effective 21 September 2004.
_______ _ __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.
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