IN THE CASE OF:
BOARD DATE: 23 October 2014
DOCKET NUMBER: AR20140001765
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 voidance of his discharge and transfer to the Retired Reserve.
2. The applicant states that he received his 20-Year letter in 2001 and retired from the Reserves; however, he recently contacted officials at the U.S. Army Human Resources Command (HRC) and was informed that he was not retired and that he was discharged from the U.S. Army Reserve (USAR).
3. The applicant provides no additional documents with his application.
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 in April 1963. He last reenlisted on 11 August 1995 for 6 years. He was serving as a USAR Sergeant First Class (E-7) when he received his 20-Year letter on 2 February 2001.
3. On 14 August 2001, orders were published by Headquarters, 84th Division which discharged him from the USAR on 14 August 2001 due to the expiration of his term of service (ETS).
4. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 of that regulation relates to the removal of Soldiers from 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.
5. Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part, that orders discharging a Soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud. After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.
2. While the applicant asserts that it was his desire to be transferred to the Retired Reserve, he has provided no evidence with his application nor is there any evidence in the available records to support that contention. Therefore, in the absence of evidence to the contrary, there is no basis to place the applicant in the Retired Reserve retroactively.
3. The discharge does not affect his eligibility for USAR Retired Pay, upon application, at age 60.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20140001765
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ABCMR Record of Proceedings (cont) AR20140001765
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