IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120022000 


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 his records to show he was transferred to the Retired Reserve.

2.  The applicant states he completed the required qualifying years of Reserve service for transfer to the Retired Reserve in 2003.

	a.  In April 2005, he took a "non-military leave of absence" to work in Russia for his civilian employer.

	b.  He received orders honorably discharging him from the U.S. Army Reserve (USAR) on 24 October 2006.

	c.  He would like to be reinstated into the USAR Control Group (Retired Reserve) in order to obtain "gray area" benefits and retired pay at age 60.

3.  The applicant provides copies of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) and discharge orders.

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 24 February 1966.

3.  The applicant enlisted in the USAR Delayed Entry Program on 3 November 1983.  He was discharged from the USAR DEP on 22 August 1984 for immediate enlistment in the Regular Army.  On 23 August 1984, he enlisted in the Regular Army and had honorable active duty service from 23 August 1984 through 22 May 1988.  He transferred to the USAR Control Group (Reinforcement) upon his release from active duty and he reenlisted in the USAR on 12 August 1990.

4.  On 3 December 2003, the Director, Personnel Actions and Services, USAR Personnel Command (AR-PERSCOM), St. Louis, MO, notified the applicant of his eligibility for retired pay upon application at age 60.  He was reminded that since he had completed 20 years of qualifying service, he must earn a minimum of 50 points during each retirement year to retain an active status and the requirement could be waived only once for valid reasons.

5.  Headquarters, 95th Division (Institutional Training), Oklahoma City, OK, Orders 05-339-00001, dated 5 December 2005, mandatorily reassigned the applicant from his USAR unit to the USAR Standby Reserve (Active Status List) effective 3 January 2006 by authority of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers).

6.  U.S. Army Human Resources Command (HRC), St. Louis, MO, 
Orders D-10-625253, dated 24 October 2006, honorably discharged the applicant from the USAR effective 24 October 2006.

7.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 21 years, 11 months, and 28 days of qualifying service for retirement as of 24 October 2006.

	a.  The last year he earned a minimum of 50 points was during the retirement year ending 2 November 2005 when he earned 53 total points.

	b.  He earned 15 membership points and one inactive duty point during the period 3 November 2005 through 24 October 2006.

8.  A review of the applicant's military personnel records failed to reveal any evidence that he requested transfer to the Retired Reserve.

9.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.

	a.  Chapter 1 (General Provisions), paragraph 1-3, provides that orders discharging a Soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.

	b.  Chapter 4 (Expiration of Service Agreement), paragraph 4-1, provides that a Soldier will be discharged from the Army upon expiration of the later of the term of contractual service or the statutory military service obligation.

10.  Army Regulation 140-10, chapter 6 (Transfer to and from the Retired Reserve), provides policy and procedures for transfer to and from the Retired Reserve.

	a.  Paragraph 6-1 provides that assignment to the Retired Reserve is authorized and eligible Soldiers must request transfer if they (in part):

		(1)  are entitled to receive retired pay from the U.S. Armed Forces because of prior military service or

		(2)  have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.

	b.  Paragraph 6-2 provides that orders transferring Soldiers to the Retired Reserve will cite this paragraph and state the reason for transfer.  When retirement and mandatory removal are concurrent, the orders will also show the reason for mandatory removal.  Soldiers transferred to the Retired Reserve will be furnished a DA Form 977 (Certificate of Transfer to Retired Reserve), except that a DA Form 977 is not required for Soldiers transferred to the Retired Reserve in the same grade as shown on their DD Form 363A (Certificate of Retirement).


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was transferred to the Retired Reserve.

2.  On 3 December 2003, AR-PERSCOM notified the applicant of his eligibility for retired pay upon application at age 60.

	a.  The applicant's last qualifying year of active service in the USAR was the retirement year ending 2 November 2005.  He was mandatorily reassigned from his USAR unit to the USAR Standby Reserve (Active Status List) effective 3 January 2006.

	b.  On 24 October 2006, the applicant was honorably discharged from the USAR based on the expiration of his term of service.

	c.  There is no evidence he requested transfer to the Retired Reserve.

   d.  Thus, the applicant's discharge from the USAR was and remains valid. Therefore, he is not entitled correction of his records to show he was transferred to the USAR (Retired Reserve).

3.  The applicant is advised that former members of the Reserve Components who are eligible to receive retired pay at age 60 under Title 10, United States Code, section 12731, but who have terminated their Reserve status are entitled to receive benefits provided under Chapter 54, Title 10, United States Code. Accordingly, the applicant should contact the HRC Service Center for additional information regarding his eligibility and authorization for benefits.  The applicant will need to provide a copy of his written notification of eligibility to receive retired pay as verification.  The applicant should also contact his nearest Retirement Services Officer (RSO) for information and assistance regarding retirement benefits.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp

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)                                         AR20120022000



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ABCMR Record of Proceedings (cont)                                         AR20120022000



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