BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120017668 


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 his records be corrected to show he was transferred to the Retired Reserve effective 15 June 2002.

2.  The applicant states that:

	a.  He was non-selected for retention by a Qualitative Retention Board in 2002 and he was subsequently transferred to the U.S. Army Reserve Control (USAR) Group (Reinforcement), effective 15 June 2002, due to a remaining military service obligation (MSO).

	b.  At that time he was not told he had the option to transfer to the Retired Reserve.  He believes he could have completed his remaining MSO in the Retired Reserve.

	c.  He was not aware that he had been discharged from the USAR Control Group on 10 May 2005.

	d.  He believes an injustice occurred when his unit made the decision to transfer him to the Control Group (Reinforcement) and not allow him the option to transfer to the Retired Reserve.

	e.  He called the retirement service office to make an appointment for retirement processing and found out that his retirement pay would be based on the date he was released from the USAR Control Group (Reinforcement) and not on the 2013 pay scale. 
3.  The applicant provides: 

* 15 June 2002 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* 28 June 2002, NGB Form 22A (Correction to NGB Form 22)
* 17 May 2002, discharge orders assigning him to the USAR Control Group (Reinforcement)
* 9 July 2009, Army National Guard Retirement Points History Statement 
* 15 April 1996, Notification of Eligibility for Retired Pay at Age 60
* 10 May 2005, orders showing he was honorably discharged from the USAR 

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 17 July 1953.  Following prior enlisted service in the U.S. Navy, the applicant enlisted in the Oklahoma Army National Guard (OKARNG) and he was subsequently transferred to the Missouri ARNG (MOARNG).  He served through multiple extensions or reenlistments in a variety of assignments and attained the rank of sergeant/E-5.

3.  The applicant provided:

	a.  a 15 April 1996, MOARNG Memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

	b.  Headquarters MOARNG Orders 137-171, dated 17 May 2002, showing the applicant was to be discharged from the Army National Guard and assigned to the USAR Control Group (Reinforcement), effective 15 June 2002.

	c.  An NGB Form 22, dated 15 June 2002, showing in:

		(1)  Item 18 ((Remarks) the "INDIVIDUAL ASSIGNED TO USAR CONTROL GROUP (REINFORCEMENT) FOR A COMPLETION OF 
07 MONTHS and 12 DAYS CONTRACTUAL OBLIGATION."

		(2)  Item 23 (Authority and Reason): "PARAGRAPH 8-27A, AR 600-200 NOT SELECTED FOR RETENTION BY QUALITY RETENTION BOARD."  

	d.  U.S. Army Human Resources Command, St. Louis, Missouri, Orders 
D-05-515820, dated 10 May 2005, showing the applicant was to be honorably discharged from the USAR effective 10 May 2005.

4.  The applicant's Qualitative Retention Board processing documentation is not available.

5.  Army Regulation 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 11 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service the Soldier will be discharged by the separation authority.

6.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states 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.  

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was issued a 20 Year Letter and completed over 20 years of service for retirement.  

2.  The applicant was a noncommissioned officer at the time of discharge.  He knew, or should have known, that a transfer to the Retired Reserve is not automatic and must be requested.  

3.  His NGB Form 22, dated 15 June 2002, showed he was being transferred to the USAR Control Group (Reinforcement for completion of a 7 month and 12 day
contractual obligation.  Had he exercised due diligence he should have been inquiring into his status around December 2002/January 2003.

4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

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)                                         AR20120018742



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ABCMR Record of Proceedings (cont)                                         AR20120017668



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