IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130001707 


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 placement in an "active retirement status" so he may receive pay at the current pay scale when he retires at age 60.  In effect, he requests correction of his records to show he was transferred to the Retired Reserve effective 12 December 1995 in lieu of being discharged from the U.S. Army Reserve (USAR).

2.  The applicant states he was honorably discharged from the USAR on 12 December 1995.  He does not know why he was discharged then and the reason for his discharge remains unclear today.  In any case, he was able to track down his records.  The U.S. Army Human Resources Command (HRC) has finally reconciled and updated his U.S. Army Reserve Personnel Center (ARPERCEN) (now known as HRC) ARPC Form 249-E (Chronological Statement of Retirement Points).

3.  The applicant provides his USAR discharge orders and ARPC Form 249-E, dated 19 December 2012.

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 19 October 1955.

3.  Having prior enlisted service, the applicant enlisted in the Regular Army on 28 April 1978 and he held military occupational specialty 76Y (Unit Supply Specialist).

4.  He served through multiple reenlistments in a variety of assignments.  He was honorably discharged from active duty on 29 January 1985 by reason of expiration of term of service and transferred to the USAR Control Group (Reinforcement).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years and 7 months of creditable active service.

5.  The ARPC Form 249-E he submitted shows he was assigned to the USAR effective 30 January 1985.

6.  On 12 December 1995, ARPERCEN published Orders D-12-511215 honorably discharging him from the USAR effective 12 December 1995.

7.  In January 2012, he communicated with HRC and submitted his Regular Army DD Form 214 as well as multiple DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) that show he was an active/drilling participant with the 8001st Reinforcement Training Unit in Germany.

8.  On 19 December 2012 with input from the applicant, HRC updated his ARPC Form 249-E to show he completed 20 years, 5 months, and 13 days of qualifying service toward Nonregular (Reserve Component) retirement.

9.  On 17 January 2013, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This memorandum 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.

10.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and USAR enlisted Soldiers for a variety of reasons.  It states an enlisted Soldier will be discharged by reason of removal from the list when his removal is required by Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) unless he is eligible for a transfer to an active status or is eligible for and applies for a transfer to the Retired Reserve.

11.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to 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.  It also states an officer or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, Individual Ready Reserve, or Standby Reserve (Active List) and an officer or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date will be removed from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Regular Army from 30 June 1975 through 29 January 1985.  His DD Form 214 for this period of service shows he completed 9 years and 7 months of creditable active service.  The ARPC Form 249-E he submitted shows he was assigned to the USAR effective 30 January 1985.

2.  It appears he was an active participant/drilling member of a USAR unit overseas.  It also appears that ARPERCEN was unaware of his active participation.  On 12 December 1995, ARPERCEN published orders honorably discharging him from the USAR.

3.  Years later he communicated with HRC in an effort to reconstruct his retirement points.  After submitting his DD Form 214 and multiple DA Forms 1380, HRC updated his ARPC Form 249-E to show he completed 20 years, 5 months, and 13 days of qualifying service toward Nonregular (Reserve Component) retirement and followed that with the issuance of a 
20-year letter.

4.  It appears that being overseas at the time coupled with several administrative errors compounded the applicant's situation.  It is clear that had his retirement points been correctly updated, he would have known he had completed 20 or more years of qualifying service and could have requested a transfer to the Retired Reserve.  Therefore, as a matter of equity, his records should be corrected to show he did so in 1995.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 amending ARPERCEN Orders D-12-511215, dated 12 December 1995, to show he was transferred to the Retired Reserve effective that date.



      _______ _   _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)                                         AR20130001707



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ABCMR Record of Proceedings (cont)                                         AR20130001707



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