PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            29 July 1999
	DOCKET NUMBER:   AR1998013254

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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 that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.

3.  The applicant states, in effect, that he was originally transferred to the Retired Reserve after being twice nonselected for promotion to lieutenant colonel (LTC); however, after expressing a desire to apply for enlistment in his former enlisted pay grade of E-7 and receiving encouragement from the recruiter that it was very possible, his transfer to the Retired Reserve was revoked and he was instead discharged from the USAR in order to apply for enlistment.  He further states that he was informed that it was necessary for him to be discharged in order for him to apply for a grade determination for enlistment.  He goes on to state that the recruiter at the time did not submit the request for grade determination after nearly a year had passed and the slot he had been accepted for was no longer available.  He goes on to state that he was then informed that he would probably only receive a grade determination for the pay grade of E-6.  At that point he felt it unacceptable and asked to be transferred back to the Retired Reserve.  He was then informed that since he had been discharged he could not be transferred to the Retired Reserve. 

4.  The applicant’s military records show on 17 August 1992, 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 at age 60 (4 January 2006).  He was serving as a major in a USAR Troop Program Unit at the time.

5.  On 25 April 1996 he received orders transferring him to the Retired Reserve effective 22 April 1996 due to his being twice nonselected for promotion.

6.  On 3 May 1996 orders were published which revoked his transfer to the Retired Reserve and instead discharged him from the USAR effective 22 April 1996.

7.  A review of the applicant’s records failed to reveal any indication of why the applicant’s transfer to the Retired Reserve was revoked or that he attempted to apply for a grade determination in an enlisted status.

8.   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 that 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. 

9.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative 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 a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s discharge was accomplished in accordance with law and regulations applicable at the time.

2.  However, it appears that he was either not properly advised of the consequences of being discharged or that his request for a grade determination was not properly submitted in a timely manner.  As a result, he could not accept the position for which he had been led to believe would be available if he elected to be discharged.  It is reasonable to presume that given his qualifying years of creditable service for retired pay purposes, had he been properly informed of the consequences that he would be faced with by accepting a discharge (losing the benefits associated with being in the Retired Reserve), he would have elected to be transferred to the Retired Reserve.

3.  Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records by voiding his discharge of 22 April 1996 and assigning him to the Retired Reserve effective the same date.

4.  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 22 April 1996 discharge from the USAR of the individual concerned; and

b.   by showing that he was transferred to the Retired Reserve effective 22 April 1996.

BOARD VOTE:  

___chl __  __slp____  __clg ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Charles H. Loundermon__
		        CHAIRPERSON

INDEX

CASE ID	AR1998013254	
SUFFIX		
RECON		
DATE BOARDED	1999/07/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  333 	135.0100/TRANS RET USAR	
2.		
3.		
4.		
5.		
6.