MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 July 1999                   
	DOCKET NUMBER:   AR1998005539

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John Saputo		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his previous request that his USAR appointment as a commissioned officer be reinstated.  In two supplemental requests the applicant asks for either reappointment in an appropriate grade commensurate with his experience or a change in his discharge from the IRR to voluntary resignation with an adjusted date that would credit him with 10 years commissioned service.  He also requests removal from his records of all references to his separation for nonparticipation.

APPLICANT STATES:  That his previous case adjudicated by the ABCMR was mishandled and did not address all the evidence presented by him.  He believes that he has newly discovered statutory and regulatory evidence that supports his previous contentions that he was wrongfully and illegally discharged from his commissioned status in 1979.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 10 April 1996 (COPY ATTACHED).

The applicant submits as new evidence a voluminous list of exhibits that principally consist of extracts of Title 10, USC, Army regulations, documents from his official military personnel file (OMPF), and a chronology of his military and civilian career.

The applicant’s principal contentions relate to his discharge as an officer from the Standby Reserve as being illegal as a matter of law and regulation.  He cites many paragraphs from Title 10, USC and Army Regulations 135-175 (separation of officers), and Army Regulation 140-10 (assignments and transfers) with his own interpretation on how they should be applied in his case.

The applicant was separated from active duty and assigned to the Standby Reserve by Fort Lewis, Washington effective 16 September 1977.  He was serving in the grade of O3 and had completed his contractual and statutory obligation with more than 8 years active duty.

On 17 April 1979 the Reserve Components Personnel Center (at the time RCPAC) issued orders #04-1021184 which discharged the applicant from the Standby Reserve effective 1 July 1979.  The order also terminated all Reserve of the Army appointments.  A code on the orders indicates that the reason for discharge was nonparticipation.  The applicant acknowledged that he was unable to participate because he was pursuing a civilian career and a masters degree.

Army Regulation 140-10, in effect at the time, states that members will be removed from an active status by discharge, transfer to the Retired Reserve if eligible and requested by the member, or transfer to the Inactive Control Group.

The regulation goes on to state the reasons which require removal.  The nonparticipation requirement states that failure of a member who has completed his statutory military service to earn the minimum retirement points will be removed.  The points required of an officer with less than 20 years of qualifying service for retirement are a minimum of 27.  Removal by any of the three options listed above is authorized.

Additionally, there are two authorized exceptions to this reason for removal.  Exception number one authorized CG, RCPAC to waive, for one year, the participation requirement if a member requests it through presentation of evidence that it was beyond his control.  The second exception only applied to members with at least 18 years of qualifying service.

The regulation also explains the composition of the various Reserve Control Groups, eligibility for assignment, and reasons for removal.  One of the reasons listed for assignment to the Control Group Standby is a member, who for a temporary bona fide reason, cannot participate and expect to return to the Ready Reserve.  Nonobligated members may only remain in the Standby for 1 year, again, unless a one-time exception is requested by the member and granted by CG, RCPAC.

Army Regulation 135-175, in effect at the time, provided for the removal of an officer from an active status if he had fulfilled his statutory military service obligation and failed to earn the necessary retirement points for retention.  It goes on to reference AR 140-10 and 10, USC, section 1002.

10 USC, section 1002, in effect at the time, states that an officer must attain the prescribed number of points to be retained in an active status.  Failure to attain the minimum number of points requires the member to be transferred to the Retired Reserve if he applies, be transferred to an inactive status if authorized, or be discharged.  Separation for failure to comply with these qualifications and standards is not effected by the limitations on separation covered in section 1163.

Army Regulation 135-180 implements the statutory authority for the granting of retired pay to Reserve Component soldiers.  It provides that a soldier who is transferred to the Retired Reserve after 25 February 1975 will be retired in the grade which the soldier held at time of transfer unless they held a higher grade while on active duty or in an active Reserve status for at least 185 days.

Information provided by the Reserve Personnel Command (AR-PERSCOM) revealed that the only document in his records that reflect separation for nonparticipation are the separation orders, which remain valid.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s contention that his discharge was not in accordance with law and regulations is without foundation.  The fact that the discharge was not timely executed at the end of September 1978, the completion of his 1 year in the Standby, does not mean that his discharge was not in accordance with law and regulations in effect at the time.

3.  AR 135-175 and AR 140-10 both clearly identified the requirements to remain in an inactive status and how removal would be accomplished at the completion of the authorized time period.  Additionally, the applicant will be authorized to retire in the grade of captain if he elects to do so.  He does not require 10 years in grade.

4.  The applicant's administrative separation was accomplished in compliance with applicable laws and regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.  He is not entitled to removal of the separation orders from his records.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __emw___  __js____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998005539	
SUFFIX		
RECON		
DATE BOARDED	19990714	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	129.05	
2.		
3.		
4.		
5.		
6.