BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130002607 


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, revocation of her U.S. Army Reserve (USAR) discharge orders and transfer to the Retired Reserve effective 30 September 1999.

2.  The applicant states she was not counseled or afforded the opportunity to transfer into the Retired Reserve in accordance with Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) and Army Regulation 135-155 (Army National Guard and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prior to being discharged from the USAR on 30 September 1999.

3.  The applicant provides:

* Special Orders (SO) Number 30 AR, dated 19 March 1993
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 19 June 1995
* SO Number 86 AR, dated 2 May 1997
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 15 May 1997
* U.S. Army Reserve Personnel Command (AR-PERSCOM) 
Orders D-09-968275, dated 30 September 1999
* self-authored statement/letter, dated 24 November 2012
* Information Paper, dated 16 January 2013
* U.S. Army Human Resources Command (HRC) (formerly known as 
AR-PERSCOM) ARPC Form 249-E (Chronological Statement of Retirement Points), dated 16 January 2013
* self-authored letter, dated 28 January 2013

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 enlisted in the Oregon Army National Guard (ORARNG) on 3 May 1975 and was honorably released on 30 June 1978 to accept an appointment as a Reserve commissioned officer.

3.  ORARNG Orders 128-4, dated 3 July 1978, appointed her as a commissioned officer in the ARNG effective 1 July 1978.

4.  Her records contain a 20-year letter from the ORARNG, dated 19 June 1995, which notified her that she had completed the required years of service and would be eligible for retired pay upon application at age 60.

5.  ORARNG Orders 56-4, dated 24 March 1997, honorably separated her from the ORARNG and transferred her to the USAR Control Group (Reinforcement) effective 15 May 1997.

6.  Her records contain an NGB Form 22 showing she was honorably released from the ORARNG effective 15 May 1997 for reaching her maximum allowable age and transferred to the USAR Control Group (Reinforcement).

7.  Her records contain three memoranda (Notification of Promotion Status) from the U.S. Total Army Personnel Command (currently known as HRC), dated 16 September 1996, 18 February 1998, and 14 January 1999.  These letters stated:

	a.  A Reserve Selection Board convened at Headquarters, Department of the Army considered her for promotion to the grade of colonel under the provisions of Army Regulation 135-155.  Unfortunately, the board did not recommend her for promotion.

	b.  The board was composed of senior officers of demonstrated judgment, at least one half of whom were Reserve officers, who did not limit their deliberations to any specific items but reviewed and evaluated her military record.  Under criteria established for the board, selections for promotion to the grade of colonel are on a best qualified basis.  Competition is extremely keen and while an officer may be fully qualified for selection, he or she may not be one of the few selected for promotion.  Selection boards are not permitted to divulge the reasons for their selection or nonselection.

	c.  She would be considered again by a new board with officers who meet the criteria for the next zone provided she was in an active and promotable status. The new board would evaluate her official Department of the Army file, to include any additions since the last consideration.  This board would judge her military record as compared with the record of the officers in the new zone of consideration.

8.  AR-PERSCOM Orders D-09-968275, dated 30 September 1999, honorably discharged her from the USAR effective 1 October 1999.

9.  HRC Orders C05-394163, dated 29 May 2013, placed her on the Retired List in the rank/grade of lieutenant colonel (LTC)/O-5 effective 31 July 2013.

10.  She provided an ARPC Form 249-E, dated 16 January 2013, which shows she served in both the ARNG and the USAR without a break in service from 3 May 1975 to 1 October 1999 and was credited with completing 24 years of qualifying service for retired pay at age 60.

11.  She provided a self-authored letter, dated 28 January 2013, wherein she stated an error was made by discharging her on 1 October 1999.  The error apparently occurred when her promotion packet went before the colonel promotion board and she was a two-time nonselect.  She further stated:

	a.  Army Regulation 135-155, paragraph 2-1, states that officers with 20 years of qualifying Federal service for retired pay who are being considered for involuntary separation will be afforded the opportunity to elect transfer to the Retired Reserve in lieu of involuntary discharge.  However, she was never provided with this opportunity.

	b.  Army Regulation 135-155, paragraph 4-4, states that USAR officers nonselected for promotion after the second consideration will be removed by discharge, transferred to the Retired Reserve (if eligible and requested by the member), or, if eligible, transferred to a control group (inactive).  However, she was not aware of the promotion boards, their actions, or given the opportunity to transfer to the Retired Reserve.

12.  Army Regulation 135-155, Figure 4-8, provides the appropriate format for notification of nonselection for promotion to LTC as follows:

1.  A Department of the Army Reserve Components Selection Board was convened to consider officers of your grade for promotion.  The board examined the performance portion of your official military record according to the Memorandum of Instruction provided by the Department of the Army, Deputy Chief of Staff for Personnel.

2.  You were considered but, unfortunately, were not among those selected for promotion by the board.  As a result of this second nonselection, you must be discharged unless you:

	a.  Are eligible for and request transfer to the Retired Reserve;

	b.  Have a remaining service obligation; or

	c.  Have been credited with 18 or more but less than 20 years of qualifying Federal service for retired pay as defined in 10 USC 1332.  As provided in 10 USC 1006 and Army Regulation 140-10, paragraph 7-12b, such officers will not, without their consent, be removed from active status prior to the date on which they are credited with 20 years of satisfactory Federal service or prior to the third anniversary (or second anniversary if the officer has been credited with 19 or more years of satisfactory Federal service) of the date on which he or she would otherwise be removed from an active status, whichever is earlier, unless he or she sooner attains the age of 60 (or age 64 or 68 for AMEDD officers extended under AR 140-10, paragraph 7-13) or is removed for physical disability or cause.

3.  Your service in the U.S. Army Reserve is fully appreciated by your fellow Americans and service members.  It has contributed immeasurably to the strength of the Armed Forces which defends our country and way of life.  You have good reason to be proud of your participation and accomplishments in the Reserve program.

4.  On behalf of a grateful nation, I wish you the best of luck in all your future endeavors.

13.  Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers) prescribes policies and procedures for separation of USAR officers.  Paragraph 4-6 (Removal from the Inactive Status List of the Standby Reserve) states an officer will be discharged by reason of removal from the list when his or her removal is required by Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) unless he or she is eligible for a transfer to an active status or is eligible for and applies for a transfer to the Retired Reserve.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the three letters of notification of nonselection for promotion to LTC the applicant received did not follow the format provided in Army Regulation 135-155, Figure 4-8.  None of the letters informed her that she had the option to transfer into the Retired Reserve.  In fact, these letters did not provide her with any of the three available options as required by regulation.

2.  The evidence of record shows the applicant was issued a 20-year letter and completed 24 years of service for retired pay at age 60.

3.  There is no evidence in the available records and she provides none to show she requested transfer to the Retired Reserve; however, based solely on the letters of notification she received, it is quite possible that she was not informed of the available options or given the opportunity to request transfer to the Retired Reserve.

4.  Therefore, as a matter of equity, the applicant's discharge orders should be amended to show she was transferred to the Retired Reserve effective 1 October 1999.


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 AR-PERSCOM Orders D-09-968275, dated 30 September 1999, to show she was transferred to the Retired Reserve effective 1 October 1999.



      __________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)                                         AR20130002607



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ABCMR Record of Proceedings (cont)                                         AR20130002607



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