IN THE CASE OF:	  

		BOARD DATE:	  26 March 2014

		DOCKET NUMBER:  AR20130011680 


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 revocation of her discharge and retroactive transfer to the Retired Reserve.

2.  She states she was discharged from the Active Guard Reserve (AGR) Program instead of being transferred to the Retired Reserve.  She states, in effect, she was not aware that she had to request transfer to the Retired Reserve.  She thought the transfer was automatic.  She was not aware of the matter until she applied for retired pay at age 60.  When she separated in 1997, she was told she had her 20 years and should just wait until age 60 to receive retired pay.

3.  She provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC)
* Chronological Statement of Retirement Points
* orders

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 had prior service in the U.S. Air Force.  On 26 June 1976, she enlisted in the U.S. Army Reserve (USAR).  On 29 September 1986, she entered active duty in the AGR Program where she continued to serve until she was discharged.  On 13 January 1991, she reenlisted for a period of 6 years, thereby establishing an expiration of term of service (ETS) of 12 January 1997.

3.  On 19 April 1996, her battalion commander imposed nonjudicial punishment against her under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using cocaine on several dates in 1995 and 1996, for wrongfully distributing cocaine on 12 January 1996, and for wrongfully endeavoring to impede the outcome of a urinalysis on 3 November 1995 and 12 January 1996.  The applicant's appeal was denied; however, the original punishment of reduction to sergeant/E-5 was mitigated to forfeiture of $300.00 for 2 months.

4.  On 12 April 1996, her battalion commander notified her she was initiating action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for abuse of an illegal drug, distributing an illegal drug, and impeding the outcome of a urinalysis.  Her battalion commander informed her she was recommending a general discharge and advised her of her rights.

5.  The applicant acknowledged she had been advised of the basis for the contemplated action to separate her and requested consideration of her case by an administrative separation board.

6.  On 5 August 1996, an administrative separation board found the applicant:

* had committed the serious offense of wrongful use of cocaine
* did not commit the serious offenses of wrongfully distributing cocaine or engaging in a recruiting impropriety

7.  The board did not make a determination on the matter of two instances of impeding the outcome of a urinalysis.  The board recommended her retention in military service and removal from the sergeant first class/E-7 promotion list.

7.  On 19 August 1996, her battalion commander recommended her bar from reenlistment for continuing service on active duty in an AGR status on the basis that her consumption of an illegal drug was an interest or habit detrimental to the maintenance of good order and discipline.  The applicant submitted a statement in her own behalf requesting disapproval of the bar to reenlistment, largely based on the findings of the administrative separation board.  On 20 November 1996, the appropriate authority approved the bar to reenlistment.

8.  On 28 October 1996, Major General (MG) A____ E. L____, Commander, U.S. Army Recruiting Command (USAREC), notified the applicant he was initiating action to separate her pursuant to Secretarial plenary authority under the provisions of Army Regulation 635-200, paragraphs 2-6(e)(1) and 5-3, and recommending the issuance of a General Discharge Certificate.  He advised her of her right to consult with counsel and to submit written statements in her own behalf.

9.  On 30 October 1996, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), informing her she had completed the required years of service to be eligible for retired pay upon application at age 60.

10.  On 5 December 1996, the applicant acknowledged she had been advised by counsel of the basis for the contemplated action to separate her pursuant to Secretarial plenary authority under the provisions of Army Regulation 635-200, chapter 5.  She elected not to submit statements in her own behalf, she waived counsel, and she acknowledged that, if separated, she may be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge or may be altogether ineligible to apply for enlistment.

11.  In a memorandum, dated 7 January 1997, the USAREC Staff Judge Advocate (SJA) stated MG A____ E. L____ believed that the administrative separation board had apparently been unwilling to accept testimony against the applicant from a former Soldier because he was unwilling to testify before the board or subject himself to cross-examination.  MG A____ E. L____ believed the former Soldier's statement was credible and consistent with other evidence developed against the applicant with regard to recruiting impropriety.  MG A____ E. L____ found the statement to be significant justification for the requested separation pursuant to Army Regulation 635-200, paragraph 5-3.  MG A____ E. L____ approved the recommendations of the SJA.

12.  On 10 January 1997, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved the involuntary separation of the applicant under the provisions of Army Regulation 635-200, paragraph 5-3; directed characterization of her service as under honorable conditions; and directed one-half payment of her separation pay.

13.  On 12 January 1997, the applicant was discharged in accordance with the separation authority's decision.

14.  The available records are void of documentation showing she requested transfer to the Retired Reserve prior to her discharge.

15.  She provided correspondence she received from the Chief, Retired Pay Branch, HRC, dated 20 May 2013, showing her application for retired pay was approved.  She also provided orders issued by HRC placing her on the Army of the United States Retired List effective 3 June 2013.

16.  Army Regulation 135-18 (Army National Guard and Army Reserve – The AGR Program), chapter 5 (Separations), states enlisted USAR Soldiers released from active duty while serving in the AGR Program under the provisions of Title 10, U.S. Code, are subject to separation under the provisions of Army Regulation 635-200 or as further provided under the provisions of Army Regulation 140-30 (Army Reserve – Active Duty in Support of the USAR and AGR Management Program).

17.  Army Regulation 140-30, chapter 8 (Reenlistments), states Soldiers who do not have a statutory service obligation prescribed in other regulations will have the options listed below when they are released from the AGR Program prior to the completion of their terms of enlistment.  An involuntary release from active duty resulting from an adverse action will have precedence over these options.  The Soldier will be:

	a.  released from active duty to serve the remainder of the enlistment in a troop program unit, in the Individual Ready Reserve, or as an individual mobilization augmentee in the USAR; or

	b.  transferred to the Retired Reserve if the Soldier is qualified and applies for the transfer.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 2-6e states that when a board of officers has recommended retention and the separation authority believes that discharge is warranted and in the best interest of the Army, a request for discharge for the convenience of the government per paragraph 5-3 may be forwarded to Headquarters, Department of the Army.

	b.  Chapter 4 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

	c.  Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by regulation or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary's discretion and with the type of discharge as determined by him.  Such authority may be given in an individual case or by an order applicable to all cases specified in such order.

19.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details and Transfers) covers policy and procedures for assigning and transferring USAR Soldiers.  Transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must voluntarily request transfer.  Chapter 6 stipulates that eligible Soldiers may request assignment to the Retired Reserve provided they have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  The qualifying Soldier must then complete a DA Form 2651 (Request for Reserve Component Assignment or Attachment) requesting transfer to the Retired Reserve or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows no basis for revoking the applicant's discharge or for transferring her to the Retired Reserve.

2.  There is no evidence of error in her discharge processing.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  There is no evidence of any mitigating circumstances that would serve as a basis for revoking her properly-issued discharge.

3.  In accordance with Army Regulation 140-30, she did not have the option to request transfer to the Retired Reserve instead of discharge because her involuntary release from active duty resulted from an adverse action.  Her discharge date coincided with her ETS, but the fact that she was involuntarily released from active duty effectively barred her from the options that would have been available to her under other circumstances.

4.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20130011680



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ABCMR Record of Proceedings (cont)                                         AR20130011680



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