IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140006991 


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 correction of his records to show reassignment to the Retired Reserve.

2.  The applicant states he was assigned to the Retired Reserve on 2 November 1994 after 20 plus years of combined active duty and Reserve time.  In 1999 he asked to be reassigned to the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR).  He was honorably discharged from the IRR on 5 December 2001 but never placed back into the Retired Reserve.  While applying for his Common Access Card (CAC) for an overseas assignment with the U.S. State Department, he attempted to obtain a Retired Reserve ID card.  He  was told that the Defense Enrollment Eligibility Reporting System (DEERS) system still showed him as being in the IRR.  In correspondence with Human Resources Command, Ft. Knox he was instructed to submit an application to the Army Board for Correction of Military Records (ABCMR) requesting the change of status to Retired Reserve. 

3.  The applicant provides copies of –

* 15 February 1985 DD Form 214 (Certificate of Release or Discharge from Active Duty
* Army Reserve Personnel Command Orders C-11-445906, dated 1 November 1994
* Army Reserve Personnel Command Orders C-09-931536, dated 24 September 1999 



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 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.  DEERS is a database under the control of the Department of Defense (DoD) that contains information for each Uniformed Service member (Active Duty, retired, or a member of a Reserve Component), US-sponsored foreign military, DoD and Uniformed Services civilians, other personnel as directed by the DoD (including the patient population serviced through the Military Health Services System), and their eligible family members.  It is operated by DoD and as such the ABCMR does not have jurisdiction to directly correct any records maintained by DEERS.  While direct correction of a DEERS record is not authorized, correction to his Army records could have a direct impact on the DEERS information.

3.  The applicant, born on 25 October 1954, served on active duty in the U.S. Air Force (USAF) from 27 April 1973 through 15 June 1977.  His DD Form 214 shows 4 years, 2 months, and 19 days of active enlisted service with 15 days of prior inactive service.  He was released from active duty with a U.S. Air Force Reserve (USAFR) service obligation through 11 April 1979.  

4.  The available record does not include any information as to what the applicant's USAFR status was between 15 June 1977 and 11 April 1979.  He was honorably discharged from the USAFR on 11 April 1979.

5.  The applicant enlisted in the USAR on 29 January 1980.  His enlistment contract shows a total of 4 years, 2 months, and 19 days prior active military service with 1 year, 9 months, and 11 days of inactive service.

6.  The available record does not record what the applicant's USAR status was from 29 January 1980 to 29 January 1982.

7.  The applicant served on active duty for training from 15 February 1983 through 12 January 1984 (10 months and 28 days).  He was released from active duty to accept an appointment as a warrant officer.

8.  On 13 January 1984, the applicant was commissioned a chief warrant officer two (Physician's Assistant) in the USAR and served on active duty for training until 15 February 1985, 10 months and 28 days.  

9.  On 31 March 1992, he received a voluntary reassignment to the USAR Control Group (Reinforcement).

10.  The only Chronological Statement of Retirement Points of record is dated 8 April 1994.  It records only his USAR service from 29 January 1982 through 28 January 1994.  The form shows –

* for the retirement years ending 28 January 1984 and 1985 – 2 full years of active duty credit
* 10 qualifying years of service 
* 2 nonqualifying years 
* 20 years, 11 months, and 21 days of total service qualifying and nonqualifying service for longevity pay purposes 

11.  Army Reserve Personnel Command Orders C-11-445906, dated 1 November 1994, released the applicant from USAR Control Group (Reinforcement) and assigned him to the Retired Reserve, effective 1 November 1994.

12.  Army Reserve Personnel Command Orders C-09-931536, dated 24 September 1999, released the applicant from the Retired Reserve and assigned him to the USAR Control Group (Reinforcement), effective 24 September 1999.

13.  Army Reserve Personnel Command Orders D-12-156153, dated 7 December 2001 discharged the applicant from the USAR Control Group (Reinforcement), effective 5 December 2001.

14.  Other than the orders cited above, the applicant's iPERMS file contains no documentation related to the applicant's discharge in 2001.

15.  The applicant's file does not include a Notification of Eligibility for Retired Pay for Non-Regular Service (20–year Letter).

16.  Army Regulation 135-175 (Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  The regulation states:

   a.  Members of the Army Reserve may be removed from an active status for any of 18 listed the reasons, with or without the officer's consent regardless of the length of their commissioned service.  Removal may be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) (emphasis added) or, if eligible, transfer to Control Group (Inactive). 
   
   b.  An officer who is removed from active status for any reason will be discharged if he is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date he is advised that he is being removed from active status.
   
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 components Soldiers.  It is the responsibility of each qualified individual to submit his or her application for retired pay.  To be eligible for retired pay, an individual need not have a military status at the time of application, but must have – 

* attained age 60 
* completed a minimum of 20 years of qualifying service (a qualifying year is defined as a year in which a Soldier earned at least 50 retirement points)
* served the last 8 years of their qualifying service as a Reserve component Soldier
* not be entitled to retired pay from the Armed Forces under any other provision of law

DISCUSSION AND CONCLUSIONS:

1.  The applicant's current status does not preclude receipt of Retired pay if he is otherwise eligible.  However, the available evidence does not show the applicant’s 20 qualifying years.

2.  Transfer from an active status (including the IRR) to the Retired Reserve is not an automatic action and must be requested by the Soldier. 

3.  While the reason for the applicant's discharge from the USAR on 5 December 2001 is not of record, there is also no evidence that he requested transfer to the Retired Reserve.  

4.  Once he was discharged (on 5 December 2001) he ceased to have a military status. 

5.  Based on the above facts and findings, there is insufficient evidence to warrant correction of the applicant's records. 

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)                                         AR20140006991



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ABCMR Record of Proceedings (cont)                                         AR20140006991



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