MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 December 1998                  
	DOCKET NUMBER:   AC98-07702

	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.  The following members, a quorum, were present:

	Ms.	Karen L. Wolff		Chairperson	
	Mr.	Melvin H. Meyer		Member	
	Mr.	Kenneth L. Wright		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Ed Clark		Analyst	

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

	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:  That his military records be corrected to show that he was transferred to the Retired reserve with entitlement to Reserve special separation pay (RSSP), vice reassigned to the Individual Ready Reserve (IRR).

APPLICANT STATES:  That, provided the opportunity, he chose to be transferred to the Retired Reserve and that someone altered his selection on an official document.  In support of the application, he submitted a copy of a the disputed DA Form 4187, Personnel Action, and various other documents.  On the reverse side of the application he further stated that he did not wish to be discharged for not obeying the orders assigning him to the IRR “as the soldier was for not wearing the hat and patch for the UN peacekeeping mission.”

EVIDENCE OF RECORD:  The applicant's military records show:

On 25 August 1983 the applicant, a member of the USAR serving in the rank of staff sergeant at the time, was notified that he had completed the required years of service for Reserve retirement pay at age 60.

A 30 September 1993 memorandum signed by an official of Headquarters, United States Army Reserve Command shows, in part, that commanders of major U. S. Army Reserve were granted authority to separate soldiers under the provisions of the Selected Reserve Transition Benefit Program based on total years of service.

The copy of the Personnel Action form submitted by the applicant shows that on 6 January 1994, while serving in pay grade E-8, he signed the form which shows that he had 30 years of qualifying service for Reserve retired pay at age 60 and that he understood that he must be separated as part of the Reserve forces drawdown.  Following that statement; three choices are shown on the form (Transfer to the Retired Reserve with eligibility for RSSP, Reassignment to the IRR with continuing of applicable benefits, and Discharge.  All three choices are preceded by an underlined space in which to indicate the choice selection.  An x is typed in the underlined space indicating the second choice (IRR).  (The placing of the x is disputed by the applicant; however, the original or another copy of the document, other than that provided by the applicant, is not in the available records).

Headquarters, 97th United States Army Reserve Command Orders 16-2-P, dated 14 February 1994, show that the applicant was assigned to the USAR Control Group (Reinforcement), effective 10 January 1994.

United States Army Reserve Personnel Command (ARPERSCOM ) Orders 
C-04-413987, dated 4 April 1994, show that the applicant was attached to the 2174th USA Garrison Detachment, Martinsville, Virginia, effective 28 March 
1994 for “Training/Points only.”

A Transmittal Record, DA Form 200, addressed to the Commander, ARPERSCOM and stamped “Received 19 December 1994” shows in the
remarks section “Transfer packets with special separation pay (RSSP) on following soldiers” followed by the names of thee soldiers, including the name of the applicant. 

A 26 January 1995 memorandum addressed to the Commander, 97th U.S. Army Reserve Command and signed for the commandant of the applicant’s unit shows that “a packet” on each soldier (including the applicant) was submitted to ARPERCEN for payment of the RSSP; and that the applicant’s unit had been notified by ARPERSCOM that the orders on each individual would have to be changed to retire them before the pay could be initiated.  An amendment to the orders was requested.  There is no indication in the available records that the requested action was taken.  A 12 April 1996 response to a Member of Congress concerning this matter shows that an official of the 97th Army Reserve Command was quoted as saying (or writing) “[This unit] stands by their original position.  [The applicant’s] actions by drilling for points only with the 2174th U.S. Army Garrison, coupled with the lengthy delay of nearly two years before bringing this matter to anyone’s attention indicate that transferring to the Individual Ready Reserve was his original intent.”

On 8 May 1996 he submitted an application to this Board.

On 18 March 1997 the Board was advised by the Chief, Separation and Transition Branch, ARPERSCOM, that Public Law 102-484 was implemented by the Assistant Secretary of Defense on 11 March 1993; that the program is intended to insure that Selected Reservists who are involuntarily separated during the force drawdown period are treated fairly and equitably for their service; that a prerequisite for RSSP is that an application for transfer to the Retired Reserve be made with the understanding that any further service will only be as specifically authorized and deemed essential to national defense; that the applicant was fully aware of his assignment to the USAR Control Group (Reinforcement); that such an assignment would have required his specific request; and that he further requested additional attachment to facilitate earning additional retirement points to increase his retired pay at age 60.  Denial of the application was recommended.

On 24 September 1998 he was provided a copy of the advisory opinion and notified that he could submit a rebuttal within 30 days.  The applicant did not respond.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  Notwithstanding the applicant’s contention that the 6 January 1994 Personnel Action form which he signed was subsequently altered by someone, the only available copy, provided by the applicant, indicates that he chose at that time to be transferred to the IRR and he has provided no evidence to support that contention.

2.  Approximately 1 month later, Headquarters, 97th United States Army Reserve Command published orders which show that the applicant was not assigned to the Retired Reserve, but rather assigned to the USAR Control Group (Reinforcement), effective 10 January 1994.  This is a logical and timely response to the applicant’s request and it is more likely than not that he, his commander, and his unit personnel officials would have become aware of the publishing of these orders during January 1994; however, there is no indication in the available records that the applicant or officials of his unit attempted to respond to the alleged error at that time.

3.  Approximately 4 months after he signed the Personnel Action form, ARPERSCOM published orders which attached him to a unit in Martinsville, Virginia, effective 28 March 1994 for “Training/Points only” and apparently participated with that unit, as shown in the advisory opinion.

4.  The only evidence of record to support the applicant’s contention that he desired to be transferred to the Retired Reserve are the packets which were submitted by his unit which were received at ARPERSCOM on 19 December 1994, approximately 8 months after he had been attached to a unit for training/points.  In a response to a Member of Congress, an official of the ARPERSCOM indicated that no error or injustice had occurred in this matter.

5.  The Chief, Separation and Transition Branch, ARPERSCOM, has advised that a prerequisite for RSSP is that an application for transfer to the Retired Reserve be made with the understanding that any further service will only be as specifically authorized and deemed essential to national defense; that the applicant was fully aware of his assignment to the USAR Control Group (Reinforcement); that such an assignment would have required his specific request; and that he further requested additional attachment to facilitate earning additional retirement points to increase his retired pay at age 60.

6.  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.

7.	In view of the foregoing, there is no basis for granting the applicant's request.

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

KLW____  MHM____  KLW____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-07702	
SUFFIX		
RECON		
DATE BOARDED	1998 December 17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.