BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130015779 


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 retroactive placement in the Retired Reserve. 

2.  The applicant states that he intended to go into the Retired Reserve when he completed his 20 years.  He only recently discovered that he had not been transferred to the Retired Reserve.  The expiration date of his enlistment was December 2000; however, he wasn't processed and finally discharged until about 6 months later.

3.  The applicant provides copies of his –

* Notification of Eligibility for Retired Pay at age 60 (20 Year letter), dated 25 May 2000
* discharge orders, dated and effective 17 May 2001

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 22 October 1958.  Following 4 years in the Regular Army the applicant became a career U.S. Army Reserve (USAR) Soldier and reached the rank of staff sergeant (pay grade E-6).  He completed 20 years of creditable service in May 2000 and was discharged in 2001 after his enlistment expired. 

3.  His 20-year letter advised him that he had completed 20 years of qualifying service.  It also:

	a.  reminded him that he could not be deprived of the qualification even if the calculations had been in error; 

	b.  that he needed to earn 50 points each retirement year to be eligible to remain in an active status

	c.  that he was eligible to participate in the Reserve Component Survivor Benefit Plan (RC-SBP) and that he had 90 days in which to apply.

4.   Headquarters, 95th Division (Institutional Training) Orders 01-137-031 dated 17 May 2001 honorably discharged the applicant under the provisions of Army Regulation 135-178.

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

6.  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 expiration of the later of the term of contractual service or the statutory military service obligation.

7.  Army Regulation 140-10, chapter 6 (Transfer to and from the Retired Reserve), provides policy and procedures for transfer to and from the Retired Reserve.  Paragraph 6-1 provides that assignment to the Retired Reserve is authorized and eligible Soldiers must request transfer if they (in part):

	a.  are entitled to receive retired pay from the U.S. Armed Forces because of prior military service or

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests retroactive transfer to the Retired Reserve.  He implies that he didn't know he had been discharged and that it took him 12 years to discover that he was not in the Retired Reserve.  He should have realized it when he received his discharge orders in May 2001.

2  The governing regulation provides that an individual must request transfer to the Retired Reserve.

3.  There is no evidence he requested transfer to the Retired Reserve.

4.  Thus, the applicant's discharge from the USAR was and remains valid. Therefore, he is not entitled correction of his records to show he was transferred to the USAR (Retired Reserve).

5.  The applicant is advised that former members of the Reserve Components who are eligible to receive retired pay at age 60 under Title 10, U.S. Code, section 12731, but who have terminated their Reserve status are entitled to receive benefits provided under Chapter 54, Title 10, U.S. Code. Accordingly, the applicant should contact the U.S. Army Human Resources Command Service Center for additional information regarding his eligibility and authorization for benefits.  The applicant will need to provide a copy of his written notification of eligibility to receive retired pay as verification.  The applicant should also contact his nearest Retirement Services Officer (RSO) for information and assistance regarding retirement benefits.  A listing of them by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp

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)                                         AR20130015779





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ABCMR Record of Proceedings (cont)                                         AR20130015779



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