IN THE CASE OF:	   

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120018226 


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 record to show she was transferred to the Retired Reserve instead of being discharged from the U.S. Army Reserve (USAR).

2.  The applicant states she believed she was being transferred to the Retired Reserve when she was released from active duty (REFRAD) on 2 March 2002; however, on 12 March 2002 she was honorably discharged from the USAR.  She states that when she applied for retired pay in 2009 she did not know she was not in the Retired Reserve and she was told her retired pay was so low because she was discharged instead of being transferred to the Retired Reserve.  She further states she would have loved having the benefit of consulting with a retirement services officer to advise her of her options.

3.  The applicant provides a copy of her DD Form 214, orders discharging her from the USAR, and a copy of her 20-year letter.

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 in 1949 and she enlisted in the Regular Army on
25 June 1981.  She served as a chaplain’s assistant until she was honorably discharged on 30 September 1992 under the voluntary early transition program and Special Separation Benefit (SSB) program.  She had completed 11 years,
3 months, and 6 days of creditable active service and she received $28,959.52 in separation benefit payments that were required to be repaid in the event the applicant attained retirement eligibility.

3.  The applicant immediately enlisted in the USAR and she was ordered to active duty during the period 9 March 1997 to 3 December 1997 for a period of 8 months and 25 days in support of Operation Joint Guard.

4.  On 15 October 2001, the applicant was again ordered to active duty in support of Operation Noble Eagle.  On 13 February 2002, she was issued her 20-year letter.  She served for 4 months and 18 days during this period of service and she was honorably released from active duty (REFRAD) on 2 March 2002.  Her DD Form 214 shows she was transferred to the USAR Control Group (Retired).

5.  Orders D-03-211445, issued by the USAR Personnel Command, St. Louis, MO, dated 12 March 2002, honorably discharged her from the USAR.

6.  The applicant became eligible for non-regular retired pay on 1 July 2009.

7.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of that regulation relates to the removal of Soldiers from active status and states, in pertinent part, 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.

8.  Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 1-3 states that orders discharging a Soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  


After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the applicant was qualified for transfer to the Retired Reserve at the time she was discharged from the USAR.  Her DD Form 214 issued at the time of her REFRAD on 2 March 2002 indicates it was the intention of the officials at the time that she be so transferred to the Retired Reserve.

2.  Likewise, those documents would reasonably lead the applicant to believe that her transfer was properly accomplished.  However, for reasons not explained in the available records, she was not transferred to the Retired Reserve.

3.  Therefore, it would be in the interest of justice to transfer her to the Retired Reserve effective 2 March 2002, the date she should have been originally transferred, with entitlement to all benefits she would have accrued from that date, if any.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION











BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

	a.  revoking Orders D-03-211445, dated 12 March 2002, discharging her from the USAR effective 12 March 2002; and

	b.  showing she was released from active duty effective 2 March 2002 and transferred to the Retired Reserve. 

	


      ___________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)                                         AR20120018226



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ABCMR Record of Proceedings (cont)                                         AR20120018226



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