IN THE CASE OF:	  

		BOARD DATE:	  16 April 2014

		DOCKET NUMBER:  AR20130013799 


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, that his records be corrected to show that he was transferred to the Retired Reserve.

2.  He states he was discharged from the U.S. Army Reserve (USAR) after 
21 years of service and he was not transferred to the Retired Reserve.  He is not considered retired in the Defense Enrollment Eligibility Reporting System (DEERS) as his first 2 years of active duty service are not counted in DEERS, only his 18 years of Reserve service.  He had his identification card taken back.  The U.S. Army Human Resources Command has acknowledged that his records need to be changed from discharged to retired, but he cannot find the correct unit to help.  His old unit has moved.  The U.S. Army Reserve Command told him to submit his request to this Board.  

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 04-271-00007, dated 27 September 2004
* AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 14 August 2005
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)

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 20 July 1966.  He enlisted in the Regular Army on 5 July 1984.  He was honorably released from active duty on 27 June 1986 and credited with completing 1 year, 11 months, and 23 days of active duty service.  He was transferred to the USAR.

3.  The applicant remained in the Reserve through subsequent reenlistments and/or extensions.  

4.  On 17 September 2003, he was notified of his eligibility for retired pay at age 60.  His AHRC Form 249-2-E shows his Regular Army active duty service.

5.  Orders 04-271-00007, dated 27 September 2004, discharged the applicant from the USAR effective 27 September 2004. 

6.  There are no documents in the applicant’s available records pertaining to a request or an election form to be transferred to the Retired Reserve

7.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) at the time, served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  

8.  The same regulation further states, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.  

9.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in 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. 

10.  In October 1999, guidance put out by the Under Secretary of Defense provided that former members of the Reserve Components who are eligible to receive retired pay at age 60 but who have terminated their Reserve status are entitled to certain benefits.  They would be eligible for identification cards reflecting the appropriate benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence to show that he requested to be transferred to the Retired Reserve.  Therefore, in the absence of documentation indicating his desire to be transferred to the Retired Reserve at the time of his discharge, the presumption of regularity must apply. 

2.  DEERS is a Department of Defense system, and this Board has no authority to direct corrections to that system.  However, the applicant clearly completed over 20 years of service to qualify for a Reserve retirement.  He was issued a Notification of Eligibility for Retired Pay at age 60, and his initial Regular Army active duty service was included as part of those 20 years as shown on his AHRC Form 249-2-E.

3.  The applicant should provide a copy of his 20-year letter, his AHRC Form 249-2-E, a copy of the Under Secretary of Defense memorandum (which will be provided to him) explaining he is entitled to an identification card, and a copy of this Record of Proceedings to an identification card facility to obtain his 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)                                         AR20130013799





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ABCMR Record of Proceedings (cont)                                         AR20130013799



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