BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130010275 


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 rather than having been discharged from the U.S. Army Reserve (USAR) on 23 September 2004.

2.  The applicant states he was trying to get his retirement points straightened out.  He knew that there were two years missing but was unable to get the supporting documents until 2010.

3.  The applicant provides copies of:

* his 16 February 2012 Notification of Eligibility for Retired Pay at Age 60 (also known as a 20-Year Letter)
* Chronological Statement of Retirement Points
* email exchanged between 17 November 2010 and 9 May 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, a USAR staff sergeant, served his entire military career as a military personnel specialist.  He was born on 12 January 1957.

3.  On 8 May 2004, he had about 8 years and 8 months of Regular Army service and approximately 11 creditable years of Reserve Component service when he extended his USAR enlistment by 4 months.  This established 10 September 2004 as the new end date of his term of contractual service.

4.  He served satisfactorily between his retirement year beginning 5 March and 22 September 2004.  He earned 6 months and 18 days of qualifying service for that period.

5.  There are no discharge orders or any other separation documentation available.  Presumably he was discharged because of the end of his term of contractual service.

6.  There is no available evidence that the applicant ever requested transfer to the Retired Reserve.

7.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.

	a.  Chapter 1 (General Provisions), paragraph 1-3, provides that orders discharging a Soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.

	b.  Chapter 4 (Expiration of Service Agreement), paragraph 4-1, provides that a Soldier will be discharged from the Army upon the later of the expiration of the term of contractual service or the statutory military service obligation.



8.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) chapter 6 (Transfer to and from the Retired Reserve), provides policy and procedures for transfer to and from the Retired Reserve:  Provisions include:

	a.  Eligible Soldiers must request transfer to the Retired Reserve;

	b.  They may request transfer to the Retired Reserve, under eight listed conditions, including:

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

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

		(3)  reached the age of 37 and completed a minimum of 8 years of qualifying federal service.

9.  The earliest email that the applicant submitted concerning his quest to update his retirement points is dated 17 November 2010.

10.  The Integrated Web Services of the Soldier Management System shows only three entries between 2006 and 2010.  In April 2007 his phone number and address were updated and he asked for a fax number to send documentation of his retirement points.

DISCUSSION AND CONCLUSIONS:

1.  Given that the applicant was a career personnel specialist he should have known that he would have to be discharged if he did not have a service contract.  He also knew or should have known that a Reserve Soldier has to request transfer to the Retired Reserve and that a 20-year letter was not a requirement for the Retired Reserve.

2.  The fact the applicant extended his enlistment by only 4 months gives the impression that he knew what he was doing.  The fact that he stopped active participation immediately thereafter tends to strengthen that impression.  

3.  There is no available evidence that he did anything to get his retirement points straightened out prior to November 2010.  This was 4 years after he stopped active participation in the USAR.

4.  There is no error and no inequity.  He could have requested transfer to the Retired Reserve prior to receiving his 20-year letter.

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)                                         AR20130010275



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ABCMR Record of Proceedings (cont)                                         AR20130010275



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