PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            10 March 1999 
	DOCKET NUMBER:   AC97-09355
				   AR1998013461

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

	Mr. Loren G. Harrell		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his discharge from the Army Reserve be revoked, and instead he be transferred to the Retired Reserve.

3.  The applicant states that he had 20 years of service and that he should have elected to be transferred to the Retired Reserve instead of being discharged.  He further states that he was not properly counseled at the time of his discharge and that he did not understand the repercussions of electing to be discharged.

4.  The applicant’s military records show that he enlisted in the Regular Army on 13 May 1974 and he successfully completed his training as a unit supplyman.  On 12 May 1977, he was honorably released from active duty and transferred to the USAR where he remained until he was honorably discharged on 13 December 1994.  

5.  On 6 January 1995, the Army Reserve Personnel Center (ARPERCEN) notified the applicant (20-year letter) that he had completed the required years of service to be eligible for retired pay upon application at age 60.

6.  On 17 January 1995, he initiated a Request for Reserve Component Assignment or Attachment (DA Form 4651-R) requesting that he be honorably discharged from USAR under the provisions of Army Regulation 135-178 for expiration of term of service.  Accordingly, on 10 March 1995, he was honorably discharged under the aforementioned provision with over 20 years of service.

7.  The applicant submitted a second DA Form 4651-R to the ARPERCEN dated 16 January 1996 requesting that his discharge orders be revoked or amended to show that he was transferred to the Retired Reserve.  He indicated that he was erroneously discharged from the USAR on 10 March 1995 and that he should have been retired effective that date.  In his request he further indicated that he had not been counseled prior to signing his papers and that he did not understand what he was doing at that time.  The ARPERCEN responded to the applicant’s requests on 31 January 1996, indicating that his discharge was appropriate and that he had no justification for requesting that his orders be revoked.  However, the ARPERCEN noted that the soldier himself had submitted the request from his own residence.  The ARPERCEN requested that his unit ensure that procedures were in place to provide proper counseling of soldiers prior to separation and that subordinate commands process personnel actions properly and submit them through command channels.

8.  There is no indication in the available records to show that the applicant was properly counseled on the repercussions of requesting to be discharged as opposed to requesting transfer to the Retired Reserve. 

9.  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 the 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.

10.  Army Regulation 135-178, in effect at the time, established the policies, standards, and 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 evidence of manifest error or fraud.  After the effective date of discharge could be amended by the separation authority only to corrected manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

11.  Due to recent Departmental changes, certain benefits such as commissary and post exchange privileges, accrue to Reservists with more than 20 years of qualifying service who are transferred to the Retired Reserve that do not accrue to those who are discharged.

CONCLUSIONS:

1.  The applicant’s honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2.  However, it appears that the applicant was not informed that it would have been more beneficial to him to request to transferred to the Retired Reserve.  

3.  Therefore, it is reasonable to presume that had the applicant been provided proper counseling prior to submitting his request to be discharge, he would have elected to request to be transferred to the Retired Reserve.

4.  Since the applicant meets the eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records by voiding his discharge of 10 March 1995 and assigning him to the Retired Reserve effective the same day.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by voiding the 10 March 1995 discharge from the USAR of the individual concerned; and

b.  by showing that he was transferred to the Retired Reserve effective 10 March 1995.

BOARD VOTE:  

__klw ___  ___mw __  __flm ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred K. McCoy______
		        CHAIRPERSON

INDEX

CASE ID	AC97-09355/AR1998013461	
SUFFIX		
RECON	 	
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  325	133.030	
2.  341	136.030	
3.		
4.		
5.		
6.