IN THE CASE OF:	  

		BOARD DATE:  22 October 2013

		DOCKET NUMBER:  AR20130003837 


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 record to show he was transferred to the Retired Reserve instead of being discharged.

2.  The applicant states his record should be changed to reflect that he should have been transferred to the Retired Reserve and that he was not separated from the U.S. Army Reserve (USAR).  This change will allow him to receive all of his retirement rights and benefits beyond retired pay.

	a.  He states he separated from the Maine Army National Guard (MEARNG) on 31 July 1996, and he was eventually transferred to the USAR Control Group (Reinforcement).  On or about 24 September 1998, he received a letter from the Department of the Army notifying him he had not been selected for promotion for a second time and additional instructions would be forthcoming.  Near the end of 1998, he believes he received a packet asking whether he would prefer to be separated or placed in the Retired Reserve.  Given the years of service he had, he knows he chose the Retired Reserve.  On or about 18 February 1999, he received an order discharging him from the USAR.

	b.  In February and March “1998,” he contacted the USAR Personnel Center (ARPERCEN) by telephone.  He told them he should have been placed in the Retired Reserve, but he did not hear back from them.

	c.  On 29 January 2013, he went to Camp Keyes, Augusta, ME to make application for retired pay at age 60.  He was under the impression that having 


received his 20-year notification letter, he would be entitled to all rights for retirement.  He discovered that his records were flagged as not being eligible for an identification card.  He was told this was probably because he was not in the Retired Reserve.  He feels the ramifications of being separated vice being transferred to the Retired Reserve were not fully explained to him.  He feels his more than 28 years of service should have been sufficient justification to be placed in the Retired Reserve.

3.  The applicant provides:

* Orders 215-411, issued by Headquarters, MEARNG, dated 2 August 1996
* Memorandum issued by the U.S. Total Army Personnel Command, St. Louis, MO, subject:  Notification of Promotion Status, dated 17 September 1998
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 31 July 1996
* A self-authored memorandum, subject:  Resignation from the ARNG to Transfer to the USAR Control Group, dated 31 July 1996
* DD Form 2656 (Data for Payment of Retired Personnel), dated 29 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 was born on 12 August 1953.

3.  On 30 March 1992, he was notified he had completed the required years of service to receive retired pay upon application at age 60.


4.  He provides a memorandum showing that on 31 July 1996 he tendered his resignation as an officer of the MEARNG and requested transfer to the USAR with assignment to the USAR Control Group (Reinforcement).  This request was based on a change in his civilian occupation that caused difficulty in him attending monthly drills.

5.  On 31 July 1996, he was discharged from the MEARNG as a chief warrant officer two (CW2) and transferred to the USAR Control Group (Reinforcement).  His NGB Form 22 shows he completed 24 years, 9 months, and 24 days of total service for pay.

6.  Orders C-12-657355, issued by ARPERCEN, dated 3 December 1996, released him from the USAR Control Group (Annual Training) and assigned him to the USAR Control Group (Reinforcement).  These orders show his reassignment was mandatory.

7.  On 17 September 1998, the Chief, Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, notified him he had not been selected for promotion a second time and, as a result, he was to be discharged unless he was eligible for and requested transfer to the Retired Reserve.

8.  His record is void of documentation showing he requested transfer to the Retired Reserve.

9.  Orders D-02-907731, issued by ARPERCEN, dated 11 February 1999, honorably discharged him from the USAR effective the date of the orders.

10.  Orders C06-394935, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 19 June 2013, placed him on the Army of the United States (AUS) Retired List effective 12 August 2013, the date he reached age 60.  The orders show his assignment prior to placement on the Retired List as "N/A."  The orders advised him to contact a Retirement Services Office for a retirement briefing and issue of identification cards.  He was also advised he could contact TRICARE concerning health insurance.

11.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) covers policy and procedures for assigning and transferring USAR Soldiers.  It states that transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer.  Qualifying circumstances include completion of a total of 20 years of active or inactive 
service in the U.S. Armed Forces.  Members of the Retired Reserve may be subject to recall to active duty.
12.  The HRC website provides a comparison of the numerous benefits available to individuals in the "gray area" (e.g., members of the Retired Reserve eligible for retired pay who have not yet reached age 60) and benefits available to retirees.  "Gray area" benefits include identification cards and access to facilities such as commissaries and exchanges.  The list may be viewed at  https://www.hrc.army.mil/tagd/benefits%20for%20gray%20area%20and%20recipients%20of%20retired%20pay.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he was transferred to the Retired Reserve instead of being discharged.

2.  When he was notified he had not been selected for promotion a second time, he was also notified that he was to be discharged unless he was eligible for and requested transfer to the Retired Reserve.  Although he states he elected transfer to the Retired Reserve, there is no evidence of record and he did not provide any evidence showing he made such a request.  

3.  The applicant further states he contacted ARPERCEN and told them he should have been placed in the Retired Reserve, but he did not hear back from them.  It appears he, as a warrant officer with many years of experience, failed to exercise due diligence at the time by not continuing to contact ARPERCEN until he did hear from them.

4.  In the absence of his request for transfer to the Retired Reserve, he was discharged accordingly.  Because he was discharged, he was not eligible for an identification card or any of the other benefits available to individuals in the gray area.

5.  The record indicates the issue of his ineligibility for benefits has now been overcome by the fact that he has reached age 60 and has been placed on the AUS Retired list.  He should now be eligible for all benefits available to individuals receiving retired pay.  He should contact the nearest Retirement Services Office at Fort Drum, NY with any questions related to his eligibility for benefits.  The following information is provided:

* Phone:  (315) 772-7771 or (800) 556-9790
* E-mail:  rso@conus.army.mil

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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)                                         AR20130003837



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ABCMR Record of Proceedings (cont)                                         AR20130003837



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