BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130008988 


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 records to show he was transferred to the Retired Reserve effective 2 August 2000.

2.  The applicant states he was separated with no military status.  He requested a transfer to the Retired Reserve and he did not have any knowledge that he was not transferred until recently.  He attests that he did not receive notification that he was not in the Retired Reserve until he was informed that he could not get on base.  He contacted the State Headquarters for the Oklahoma Army National Guard (OKARNG) and they informed him that he had been separated and had no military status.  At the time of separation he had completed 22 years, 
7 months, and 28 days of qualifying service for retirement.

3.  The applicant provides the following documents that he obtained from the Officer Personnel Branch of the OKARNG:

* 20-year letter
* a memorandum
* separation orders
* National Guard Bureau (NGB) Form 22 (Repot of Separation and Record of Service)
* NGB Form 23B (ARNG Retirement Points History Statement) 




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 21 December 1959.  Following a period of service in the U.S. Navy, he enlisted in the OKARNG.

3.  On 3 August 1986, he was appointed as a second lieutenant in the OKARNG and continued to serve in a variety of positions and assignments.  He was promoted to first lieutenant on 2 August 1989 and to captain on 19 September 1991.

4.  On 14 May 1998, the Director, Personnel and Administration, Oklahoma Army and Air National Guard, rendered a memorandum Subject:  Notification of Eligibility for Retired Pay at Age 60.  The Director notified the applicant that having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 67.  

5.  On 14 January 2000, the Chief, Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, rendered a memorandum thru The Adjutant General to the applicant.  This memorandum bears the applicant's name and social security number, but no mailing address.  The author stated a Department of the Army Reserve Components Selection board convened on 2 March 1999 to consider officers in the applicant's grade for promotion.  He was considered, but not among those selected for promotion by the board.  As a result of this second nonselection, the applicant must be discharged in accordance with Title 10, U.S. Code, section 14513 or Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), and his established removal date was 1 August 2000, unless he was eligible for and requested transfer to the Retired Reserve.  Additional instructions were to be issued by the applicant's chain of command.

6.  Departments of the Army and Air Force, Oklahoma Army and Air National Guard Orders 180-007, dated 28 June 2000, separated the applicant from the ARNG, effective 1 August 2000, and reassigned him to the U.S. Army Reserve (USAR) Control Group (Reinforcement), effective 2 August 2000, based on termination of Federal recognition as an officer in the ARNG.

7.  The applicant's NGB Form 22 shows he was honorably discharged from the ARNG in the rank of captain on 1 August 2000 and transferred to USAR Control Group (Reinforcement) as a result of nonselection for promotion.  

8.  The applicant's NGB Form 23B shows that, as of 1 August 2000, he had completed 22 years, 7 months, and 28 days of qualifying service for retirement.

9.  USAR Personnel Command, Orders D-07-227908, dated 23 July 2002, honorably discharged the applicant from the USAR, effective 31 July 2002.

10.  A review of the applicant's military personnel records failed to reveal any evidence that he requested transfer to the Retired Reserve.

11.  On 29 April 2013, The Adjutant General (AG), OKARNG, rendered a memorandum wherein he requested that the ABCMR grant the applicant's request to be place in the Retired Reserve.  The AG states that is spite of the applicant's request to be transferred to the Retired Reserve, he was not.  He adds that at the time of the applicant's separation he had left Oklahoma and did not receive his separation documents.  The AG believes that this was the result of an administrative error and that it was no fault of the applicant and should not be held against him.  The AG concludes that granting the applicant's request is in the best interest of the Soldier and the OKARNG.

12.  On 14 May 2013, the Deputy Chief, Personnel Policy Division, NGB, rendered an advisory opinion wherein she recommended approval of the applicant's request based on the applicant's account of what occurred and the fact the OKARNG AG's believe that the applicant never received his separation documents and that an administrative error occurred resulting in the applicant's separation.  The advisory official also noted that the applicant's record is void of any evidence showing that he either requested not to be transferred to the Retired Reserve or that he was counseled in writing on the effects of electing not to enter the Retired Reserve such as the possibility of the loss or delay of retired pay and medical benefits, and possible loss of identification card and privileges.  Additionally, the State cannot produce documentation showing such counseling was conducted.  From correspondence with the OKARNG, it is recommended that State amend the applicant's previous discharge order and complete the necessary paperwork to transfer him to the Retired Reserve at the time of his separation.  He should be granted full administrative relief and his retirement points should be adjusted based on the transfer to the Retired Reserve.  He should also be awarded any pay, allowances, and benefits that may have been lost as a result of this error.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to respond, but elected not to do so.

13.  Army Regulation 135-175 (ARNG and USAR - Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  Members of the Army Reserve will be removed from an active status for numerous reasons with or without the officer's consent regardless of the length of commissioned service.  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to control group (inactive).  One of the reasons listed is nonselection for promotion after second consideration.  An officer in the grade of captain, who has completed his statutory military service obligation, will be discharged for failure to be selected for promotion after second consideration by a Department of the Army Reserve Components selection board.  

14.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), Chapter 6 (Transfer to and from the Retired Reserve), provides policy and procedures on the transfer to and from the Retired Reserve.

	a.  Paragraph 6-1 (Eligibility) shows that assignment to the Retired Reserve is authorized, and an eligible Soldier must request transfer, if they (in part):

	 	(1)  are entitled to receive retired pay from the U.S. Armed Forces because of prior military service; or

	 	(2)  have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.

	b.  Paragraph 6-2 (Orders and certificates) provides that orders transferring Soldiers to the Retired Reserve will cite this paragraph and state the reason for transfer.  When retirement and mandatory removal are concurrent, the order will also show the reason for mandatory removal.  Soldiers transferred to the Retired Reserve will be furnished a DA Form 977 (Certificate of Transfer to Retired
Reserve), except that a DA Form 977 is not required for Soldiers transferred to the Retired Reserve in the same grade as shown on their DD Form 363A (Certificate of Retirement).




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was transferred to the Retired Reserve effective 2 August 2000.

2.  On 14 May 1998, a letter was issued notifying the applicant that his eligibility for retired pay had been established upon attaining age 60.

	a.  The applicant's last qualifying year of active service in the ARNG was retirement year ending 1 August 2000.

	b.  On 1 August 2000, he was honorably separated from the ARNG based on second-time nonselection for promotion.

	c.  There is no evidence the applicant requested transfer to the Retired Reserve.

	d.  There is no evidence the applicant was properly notified of his pending separation or counseled regarding the impact of electing not to be transferred to the Retired Reserve.

3.  Both the OKARNG and the NGB contend the applicant's discharge was the result of an administrative error and recommend approval of his request.

4.  Despite the absence of a timely request by the applicant to transfer to the Retired Reserve, based on the evidence of record, it would be appropriate to correct the applicant's records to show he requested transfer to the Retired Reserve, effective 2 August 2000.

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 showing he requested transfer to the Retired Reserve, his request was approved, and he was transferred to the Retired Reserve effective 2 August 2000.




      _______ _  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)                                         AR20130008988



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ABCMR Record of Proceedings (cont)                                         AR20130008988



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