IN THE CASE OF:
BOARD DATE: 8 October 2013
DOCKET NUMBER: AR20130003560
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 his 4 February 2003 U.S. Army Reserve (USAR) discharge orders and transfer to the Retired Reserve.
2. The applicant states for some reason he never received his retirement orders and this is causing him problems in getting his retired identification (ID) card and taking care of other important issues such as health care.
3. The applicant provides:
* Congressional correspondence
* DD Form 214 (Report of Separation from Active Duty)
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated
1 May 2002
* Orders 310-031, issued by Headquarters, 98th Division, Rochester, NY, dated 6 November 2002
* Partially legible expired USAR ID card
* Orders D-02-305034, issued by the USAR Personnel Command, dated
4 February 2003
* Email exchange with the U.S. Army Human Resources Command (HRC)
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 applicants 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 applicants 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 25 December 1959.
3. His record shows he enlisted in the USAR on 28 March 1979 and he held a communications military occupational specialty. 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 1 May 2002, the USAR Personnel Command (now called HRC), St. Louis, MO, 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. Orders 310-031, dated 6 November 2002, reassigned him from his troop program unit (TPU) to the USAR Control Group (Individual Ready Reserve (IRR) - Reinforcement), effective 1 November 2002, a voluntary reassignment.
6. Orders D-02-305034, dated 4 February 2003, honorably discharged the applicant from the USAR effective the same date.
7. 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.
8. 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
28 March 1979 to 4 February 2003. There is insufficient evidence to show he
reenlisted (or was denied reenlistment) or requested a transfer to the Retired Reserve. Accordingly, he was honorably discharged from the USAR.
2. There is no evidence in the available records and he provides none to show he requested 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 10 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.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
5. However, a memorandum, dated 29 October 1999 and issued by the Under Secretary of Defense, states former members of the Reserve Components who are eligible to receive retired pay at age 60 under Title 10, U.S. Code, section 12731, but who have terminated their Reserve status are entitled to receive benefits provided under Title 10, U.s. code, chapter 54. ID cards reflecting the appropriate benefits have been available in Real-time Automated Personnel Identification System (RAPIDS) sites since December 1999. Reservists with more than 20 years of qualifying service for retirement at age 60 and who have terminated their Reserve status must simply take their 20-year letter to an authorized military ID card facility in order to obtain an ID card.
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) AR20130003560
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