IN THE CASE OF:
BOARD DATE: 7 November 2013
DOCKET NUMBER: AR20130003277
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 discharge from the U.S. Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve.
2. The applicant states at the time he was being activated in 2009, he was having medical issues with his knees. He asked for and was granted a medical exemption on 3 December 2009 with the understanding that he would be removed from the Individual Ready Reserve and transferred to the Retired Reserve. On 4 February 2013, he tried to renew his identification card and found out he was no longer in the system. He contacted the U.S. Army Human Resources Command (HRC) and was informed he had been honorably discharged in 2009.
3. The applicant provides:
* Notification of Eligibility for Retired Pay at Age 60
* Orders M-11-905472
* Orders M-11-905472R
* Orders D-12-923914
* a memorandum
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. Having prior service in both the Air and Army National Guard, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 1 March 2001. This letter notified him that he had completed at least 20 years of qualifying service and he would be eligible for retired pay upon application at age 60.
3. On 19 June 2001, he was discharged from the Army National Guard and assigned to the USAR Control Group (Reinforcement).
4. While assigned to the USAR Control Group (Reinforcement), he received mobilization orders on 17 November 2009 to report to Task Force Marshall effective 17 January 2010.
5. Information contained in the applicant's interactive Personnel Electronic Records Management System (iPERMS) shows he requested an exemption from active duty. On 3 December 2009, he received a memorandum from HRC stating, "as a result of this approved exemption from active duty, your status in the USAR must be changed. Based on the circumstances of your exemption request, you will be transferred to the Retired Reserves."
6. On 9 December 2009, the applicant's mobilization orders were revoked.
7. Orders D-12-923914, issued by HRC-St. Louis, dated 18 December 2009, honorably discharged the applicant from the USAR effective 17 December 2009.
8. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.
a. Chapter 4 prescribes policy and procedures governing the voluntary or involuntary assignment, reassignment, or transfer of a Soldier to and from the various control groups. Section III prescribes the policy and identifies the conditions governing the transfer or reassignment of enlisted Soldiers from the Selected, Standby, and Retired Reserve to an appropriate control group.
b. Chapter 6 provides for the transfer to and from the Retired Reserve. Paragraph 6-1 (Eligibility) states that assignment to the Retired Reserve is authorized and that eligible Soldiers must request a transfer to the Retired Reserve if they met the criteria for such a transfer.
c. Chapter 7 provides for the removal from active status and states that Soldiers removed from active status will be discharged or transferred to the Retired Reserve. Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was qualified for transfer to the Retired Reserve based on his completion of 20 qualifying years of service for Reserve retirement and the memorandum provided to him by HRC stating such.
2. Upon receiving mobilization orders, evidence shows the applicant received an exemption from active duty which required him to be transferred to the Retired Reserve. It would now be equitable and just to correct his military records by voiding his 17 December 2009 discharge from the USAR and assigning him to the Retired Reserve effective 17 December 2009, with entitlement to retired pay upon his application.
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 voiding his 17 December 2009 discharge from the USAR and assigning him to the Retired Reserve effective 17 December 2009, with entitlement to retired pay upon his application.
_______ _ 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) AR20130003277
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ABCMR Record of Proceedings (cont) AR20130003277
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