IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130020547 


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 13 January 1998 U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states:

* if his unit had updated his points at the time, he might have been eligible to go into the Retired Reserve
* he was told that he was discharged because his job was requiring him to work on the weekends that he had drills
* he would make up the weekend drills on Mondays and Tuesdays until he was told he could no longer make up drills and he was discharged
* his Reserve unit gave him credit for only 10 years of qualifying service when he actually had 20 qualifying years
* he received a successful rating for overall performance and a superior rating for promotions in multiple positions of increased responsibility
* he always completed his two-week annual training as required and then some and he was also recommended for attendance at the Basic Noncommissioned Officer Course (BNCOC)

3.  The applicant provides: 

* Orders 0313-33, dated 13 January 1998
* Email exchange 
* DA Form 2166-7 (NCO Evaluation Report) for the rating period 9612 through 9711
* Notification of Eligibility for Retired pay at Age 60 (20 Year Letter), dated 14 July 2011

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 XX April 1954.

3.  He enlisted in the Regular Army on 4 August 1973 and he held multiple military occupational specialties.  He was honorably discharged on 27 July 1980. 

4.  He enlisted in the USAR on 3 November 1981.  He served through multiple extension and/or reenlistments (17 October 1982, 11 September 1988, and 14 August 1994), and he attained the rank/grade of sergeant (SGT)/E-5.  He also served in Southwest Asia from 11 February 1991 to 10 May 1991.

5.  On 19 November 1994, a flag was initiated in his records for enrollment in the Army Weight Control Program. 

6.  On 14 October 1995, by certified letter, his company commander notified him that he had been absent from scheduled unit training or multiple unit training assemblies for the period 14 October 1995. 

7.  On 19 November 1995, by memorandum, Headquarters, 2290th U.S. Army Hospital, Rockville, MD notified him that his records were scheduled for review by a Qualitative Retention Board that would convene on 31 March 1996.  He was encouraged to review his records and mark his election on an endorsement in the event he was not selected for retention.  

8.  On 10 December 1995, by endorsement, the applicant stated he had reviewed his records and in the event he is not selected for retention, he could choose to be transferred to the USAR Control Group (Individual Ready Reserve (IRR)).  He also indicated he was working on his retirement points in order to obtain 20 qualifying years of service. 

9.  On 7 January 1997, by memorandum, Headquarters, 2290th U.S. Army Hospital, Rockville, MD notified him that his records were scheduled for review by a Qualitative Retention Board that would convene in March 1997.  He was encouraged to review his records and mark his election on an endorsement in the event he was not selected for retention.  The memorandum also stated if he failed to reply by endorsement and was not selected for retention, he would be discharged. 

10.  His election statement is not available for review with this case.  It is unclear if he responded or what choice he made. 

11.  On 24 October 1997, by certified letter, his company commander notified him that he had been absent from scheduled unit training or multiple unit training assemblies for the period 18-19 October 1997 and unless his absence was excused, he had accumulated 4 unexcused absences within 1 year.  The certified mail receipt contains the entry "Refused - Unclaimed." 

12.  On 13 January 1998, the 99th Regional Support Command published Orders 013-33 honorably discharging him from the USAR effective 13 January 1998 in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations). 

13.  On 6 April 2000, based upon his written request dated 15 June 1998, he was issued an Army Reserve Personnel Command Form 606-E (Retirement Points) that shows a break-down of his retirement points from 14 August 1973 to his dated of discharge in 1998. 

14.  On 14 July 2011, after auditing and/or correcting his retirement points, the U.S. Army Human Resources Command (HRC) issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

15.  On 27 January 2014, HRC published Orders C01-490691 placing him on the Retired List in the retired rank of SGT/pay grade E-5 effective XX April 2014, his 60th birthday. 

16.  Army Regulation 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  It states an enlisted Soldier will be discharged when his removal is required by Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) unless he is eligible for a transfer to an active status or is eligible for and applies for a transfer to the Retired Reserve.

17.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve component Soldiers.  Chapter 2 states area commanders and the Commanding General, HRC will furnish statements of service and retirement point credits when requested by a Ready Reserve Soldier under their jurisdiction.  When local records available at the Reserve units do not conclusively establish the Soldier’s creditable service and completion of 20 years of qualifying service, or mandatory removal from active status, the area command will request assistance from HRC to verify the doubtful period(s) of service.  Area commanders should make maximum effort to locate missing and unaccounted for retirement point records.  For Soldiers discharged, but qualified for retirement, HRC will issue the notification letter normally during the individual’s last period of service in an active status. 

18.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states in pertinent 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.  

19.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  Retirement points may be earned by USAR Soldiers for active duty (AD), or while in an active Reserve status, for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), annual training (AT), inactive duty training (IDT), Reserve membership, and for other specified activities.  Annual or terminal statements of retirement points tell the Soldier whether he had earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status.  It also gives the Soldier an annual opportunity to request correction of errors in their statement. 


DISCUSSION AND CONCLUSIONS:

1.  After prior active federal service, the applicant served in the USAR from 3 November 1981 to 13 January 1998.  In November 1995, he was notified that his records were scheduled for review by a Qualitative Retention Board that would convene on 31 March 1996.  He reviewed his records and indicated in the event he was not selected for retention, he wanted to be transferred to the USAR Control Group (IRR).  

2.  In January 1997, he was again notified that his records were scheduled for review by a Qualitative Retention Board that would convene in March 1997.  The notification memorandum also stated if he failed to reply by endorsement and not selected for retention, he would be discharged.  His election statement is not available for review with this case.  It is unclear if he responded or what choice he made. 

3.  Although not available for review, it is reasonable to presume that in 1998 he would have been notified of yet another Qualitative Retention Board that would convene to consider him for retention.  The notification memorandum would have also stated if he failed to reply by endorsement and not selected for retention, he would be discharged.  His election statement is not available for review with this case.  

4.  Based on nonreceipt of a 20 Year Letter, the applicant was not eligible to transfer to the Retired Reserve or, he failed to elect transfer.  Therefore, it appears his higher headquarters published orders honorably discharging him from the USAR effective 13 January 1998 in accordance with Army Regulation 135-178.  In June 1998, he initiated action to request a statement of service.  In 2000, a statement was prepared by HRC; however, it does not show he completed 20 qualifying years of service for nonregular retirement.  Nearly 12 years later and close to his 60th birth date, he requested an audit of his Chronological Statement of Retirement Points.  HRC conducted the audit and based upon the audit issued him a 20 Year Letter in 2011.  

5.  The applicant received an annual Chronological Statement of Retirement Points upon the anniversary of his retirement year while a member of the active Reserve.  Therefore, he had ample opportunity each year to correct his statement.  In addition, he had a history of not attending unit training assemblies. Notwithstanding the publication of his 20-Year Letter in 2011 by HRC, there is insufficient evidence to show he was erroneously discharged in 1998.  Therefore, there is insufficient evidence to grant him 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 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)                                         AR20130020547



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130020547



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1