IN THE CASE OF:	  

		BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140006804 


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 November 2009 U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states he had his last drill with his unit in November 2009.  In his last month he completed his 20th good year of military duty, but since he did not have his 20-Year Letter, he could only receive his honorable discharge. Three months later, he received his 20-Year Letter, but due to circumstances beyond his control he could not get back to his unit to have his orders amended to place him in the Retired Reserve.  He wants to have his discharge orders amended to read "Placed into Retired Reserve on 4 November 2009."  If his orders cannot be changed, then he asks if his record may reflect that he is in the Retired Reserve so he can receive an ID card and receive retired benefits from the military. 

3.  The applicant provides: 

* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* Discharge Orders 09-300-00028, dated 27 October 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points)



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 November 1965.  He will turn 60 years of age in November 2025.

3.  He enlisted in the Regular Army on 4 November 1987 and he held military occupational specialty 11C (Indirect Fire Infantryman).  He was honorably released from active duty on 3 November 1989.  

4.  He enlisted in the USAR on 22 December 1989.  He served through multiple periods of extension and/or reenlistment and attained the rank/grade of sergeant first class (SFC)/E-7.  

5.  On 21 January 2006, Headquarters, 104th Division published orders ordering him to active duty as a member of his Reserve unit in support of Operation Enduring Freedom, for a period of 365 days (amended to 730 days) terminating on 21 February 2008.  

6.  He entered active duty on 22 February 2006.  He was assigned to Company B, Victory Support Battalion, Fort Jackson, SC, as an instructor/writer and then as a Range Noncommissioned Officer in Charge (NCOIC).   

7.  On 12 February 2008, the U.S. Army Human Resources Command (HRC) published Orders A-02-802678, which ordered him to Active Duty for Operational Support (ADOS), effective 22 February 2008, for a period of 365 days terminating on 20 February 2009.  

8.  He was honorably released from active duty on 20 February 2009 and transferred to the 2nd Battalion, 415th Regiment, French Camp, CA, a troop program unit of the USAR.  His DD Form 214 shows he completed 2 years, 11 months, and 29 days of active service.
9.  On 25 March 2009, Headquarters, 108th Training Command, Charlotte, NC, published Orders 09-084-00005, which reassigned him from one TPU (2nd Battalion, 415th Regiment) to another (1st Battalion, 415th Regiment, Phoenix, AZ). 

10.  His last reenlistment contract was executed on 3 November 2002 for a        6-year term.  The expiration of his term of service was set as 2 November 2008. There is no indication he reenlisted or extended his reenlistment in the USAR beyond that date.  Likewise, there is no indication he requested transfer to the Retired Reserve. 

11.  On 27 October 2009, Headquarters, 108th Training Command, Charlotte, NC, published Orders 09-300-00028, which honorably discharged him from the USAR effective 2 November 2009 in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).  The orders stated he was held beyond his normal discharge date through no fault of his own. 

12.  On 3 December 2009, HRC issued him his 20-Year Letter.  This letter informed him he had completed the required years of qualifying service and would be eligible for retired pay upon application at age 60. 

13.  His AHRC Form 249-E shows he completed 20 qualifying years of service. 

14.  Army Regulation 135-178 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.

15.  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. 

16.  Army Regulation 140-10 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.  Transfer to the Retired Reserve is authorized in a number of instances, not all of which require 20 years of qualifying service (e.g., reached age 37 and completed a minimum of 8 qualifying years of Federal service).

17.  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 22 December 1989 to 2 November 2009.  He entered active duty on 22 February 2006 and he was honorably released from active duty on 20 February 2009.  Upon his release from active duty, he was reassigned within the USAR from one TPU to another.  

2.  Based on his last reenlistment, dated 3 November 2002, his ETS was in November 2008.  However, he was still on active duty at the time.  He did not reenlist or extend in the USAR, either while on active duty or after his release from active duty.  Additionally, it appears he failed to elect transfer if presented with that option.  Therefore, it appears his higher headquarters published orders honorably discharging him from the USAR effective 2 November 2009 in accordance with Army Regulation 135-178.  

3.  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 check and/or correct his statement.  Notwithstanding the publication of his 20-Year Letter in December 2009 by HRC, there is insufficient evidence to show he was erroneously discharged in November 2009.  Therefore, there is insufficient evidence to grant him the requested relief. 

4.  The applicant also contends if his orders cannot be changed, could he have his record reflect that he is in the Retired Reserve so he can receive an ID card and receive retired benefits from the military?  This is not a record correction "issue."  The applicant was properly discharged on 2 November 2009.  He was issued a 20-Year Letter that clearly advised him he would be eligible for retired pay upon application at age 60.  He should check with his nearest ID card issuing activity to see what ID card he may be entitled to.

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)                                         AR20140006804





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006804



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1