IN THE CASE OF:	  

		BOARD DATE:  25 June 2013

		DOCKET NUMBER:  AR20120021586 


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, in effect, that his 1 June 2004 U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states he did not know he was discharged from the USAR.  He did not have information on the discharge.

3.  The applicant provides: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Photograph of a military identification card
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* Orders D-06-419231 (discharging him 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 XX March 1956.

3.  Having had prior enlisted service in the Regular Army (February 1977 to February 1981), the applicant enlisted in the USAR on 21 April 1983.  He served through multiple extensions or reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.  

4.  On 18 December 1996, the USAR Personnel Center - St. Louis issued him a 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.

5.  On 5 December 2000, he executed a 3-year reenlistment in the USAR.  He reenlisted for the option of a transfer to the USAR Control Group (Reinforcement). 

6.  On 30 January 2001, Headquarters, 99th Regional Support Command, Oakdale, PA published Orders 01-030-028 reassigning him from his troop program unit (TPU) to the USAR Control Group (Reinforcement), effective 7 January 2001. 

7.  On 6 March 2001, the USAR Personnel Command - St. Louis published Orders C-03-106041 transferring him from the USAR Control Group (Reinforcement) to a TPU by reason of his voluntary request. 

8.  He entered active duty on 10 December 2001 in support of Operation Enduring Freedom.  He was honorably released from active duty on 5 November 2003 and he was transferred to the USAR Control Group (Reinforcement).  

9.  The applicant's records do not show that he requested a transfer to the Retired Reserve.  Likewise, his records do not show he reenlisted in the USAR. 

10.  On 1 June 2004, the U.S. Army Human Resources Command (HRC) - St. Louis published Orders D-05-419231, honorably discharging the applicant from the USAR, effective 1 June 2004, by reason of expiration of his term of service.

11.  An advisory opinion was obtained on 7 February 2013 from HRC in the processing of this case.  An advisory official stated that the applicant was a mobilized individual mobilization augmentation Soldier who was released from active duty on 1 June 2004.  He was discharged two months later due to ETS. 

12.  The applicant was provided a copy of this advisory opinion but he did not respond within the time allowed.

13.  Army Regulation 140-10 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the USAR, through multiple reenlistments, from September 1981 to June 2004.  After his mobilization in December 2001 and subsequent release from active duty in November 2003, he neither reenlisted in the USAR nor requested a transfer to the Retired Reserve.  Accordingly, he was honorably discharged from the USAR due to ETS.  

2.  There is no evidence in the available records and he provides none to show he requested a transfer to the Retired Reserve.  He does not provide corroborating evidence of his contention that he did not know he had to request a transfer to the Retired Reserve.

3.  The applicant was a senior noncommissioned officer.  He knew, or should have known, that a transfer to the Retired Reserve is not automatic and must be requested.  He did not do that.  He did not question his discharge status for nearly 9 years.  There is no evidence in the available records and the applicant did not provide substantiating evidence to show he requested transfer to the Retired Reserve.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20120021586





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ABCMR Record of Proceedings (cont)                                         AR20120021586



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