IN THE CASE OF:	  

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120017679 


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 transfer to the Retired Reserve in lieu of being discharged.

2.  He states he was overseas working on a Department of Defense contract in Iraq when he reached his expiration term of service (ETS) date in the Individual Ready Reserve (IRR).  He states he was working in remote locations and could not contact a recruiter.  With over 30 years of service, he would have requested transfer to the Retired Reserve if given the chance to do so.  It was his understanding at the time that if he had enough years of service upon reaching ETS, he would automatically be placed in the Retired Reserve.  It was not until he got back home in November 2011 that he received his ETS orders and contacted a local recruiter and found out otherwise.  He tried several times to reenlist into the active Reserve, but he was denied because of his years of service.  

3.  He provides no documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record includes an ARPC Form 249-E (Chronological Statement of Retirement Points) showing he served as an enlisted member in the:

* U.S. Army Reserve (USAR) Delayed Enlistment Program from 21 to 26 April 1977
* Regular Army from 27 April 1997 to 13 May 1980
* USAR from 14 May 1980 to 20 April 1981
* Army National Guard (ARNG) from 21 April 1981 to 6 April 1996
* USAR from 21 April 1996 to 26 March 2002
* ARNG from 27 November 2002 to 6 November 2009
* USAR from 7 November 2009 to 25 January 2011

2.  On 5 August 1999, the USAR Personnel Command, St. Louis, MO, notified him he had completed the required years of qualifying Reserve service to be eligible for retired pay on application at age 60.  

3.  On 6 November 2009, he was honorably discharged from the Hawaii ARNG and transferred to the USAR Control Group (IRR).  The National Guard Bureau (NGB) Form 22 documenting this discharge shows he was transferred to the IRR to complete a remaining contractual obligation of 5 months and 19 days.  

4.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows, on 8 December 2009, he extended his enlistment for 5 months.  The document shows his new ETS date was 24 September 2010.

5.  On 21 January 2010, the U.S. Army Human Resources Command (HRC), St. Louis, MO, issued Orders C-01-000842 releasing him from the IRR and assigning him to a unit in the Army Medical Command effective 5 January 2010.  The orders show his ETS date was 24 September 2010.

6.  On 25 January 2011, HRC issued Orders D-01-101143 honorably discharging him from the USAR in the rank/grade of sergeant first class/E-7 effective the date of the orders.  The orders show he was a member of the IRR at the time.

7.  His ARPC Form 249-E shows he completed 30 years, 10 months, and 8 days of service qualifying for retirement.

8.  Army Regulation 135-178 (Army National Guard and Army Reserve: Enlisted Administrative Separations) states a Soldier is entitled to be discharged on the expiration of his or her service obligation, and normally will be discharged unless action is taken to retain the Soldier beyond such expiration date.  Once a Soldier receives his/her orders, such orders may not be revoked except in one or more of the following circumstances:  (1) the orders are revoked by proper authority, either orally or in writing, prior to the effective date of the discharge; or (2) when one or more of the exceptions to the doctrine of administrative finality exist (i.e. fraud; mistake of law; mathematical miscalculation; and/or substantial new evidence discovered contemporaneously within a short time following the action).  After the effective date of discharge, orders may be amended by the separation authority only to correct administrative errors, such as errors concerning grade, social security number, or misspelled name.

9.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) covers policy and procedures for assigning and transferring USAR Soldiers.  It states that transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer.

10.  Army Regulation 140-10 states eligible Soldiers must request assignment to the Retired Reserve provided they have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  The qualifying Soldier must then complete a DA Form 2651 (Request for Reserve Component Assignment or Attachment) requesting either transfer to the Retired Reserve or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support correction of the applicant's record to show he was transferred to the Retired Reserve instead of being discharged.  

2.  At the time of his discharge in 2011, the applicant had over 30 years of service, and he was eligible to request transfer to the Retired Reserve.  The evidence of record does not show that he did so.  As a result, after reaching his ETS, he was discharged as required by law and regulation.

3.  He states he was working overseas in remote locations when he reached his ETS in 2010 and he was unable to contact a recruiter.  This might be considered a mitigating circumstance that would warrant a recommendation to approve his request; however, he has provided no documentary evidence to support this claim.  Without such evidence, there is an insufficient basis upon which to grant the relief he has requested.

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)                                         AR20120017679



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ABCMR Record of Proceedings (cont)                                         AR20120017679



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