MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 July 1999      
	DOCKET NUMBER:   AR1999019402

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Debra Williams		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:  Transfer to the Retired Reserve  

APPLICANT STATES:  That notification of his options, i.e., transfer to the Retired Reserve or discharge was never received.  He had not received any correspondence from military sources for two years.  He has changed addresses four times in the last two years, and because of these frequent changes, mail was sometimes not forwarded to him by the post office.  He did submit change of address notices every time he moved; however, the post office has been less than diligent in forwarding his mail.  He has completed the form requesting transfer to the Retired Reserve. 

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

The applicant’s chronological statement of retirement points, dated                    19 June 1996, shows that he has 24 years of qualifying service for retired pay at age 60 at his retirement year ending (RYE) date of 1 April 1995.  However, that last year ending on 1 April was not a qualifying year of service in that he earned only 44 points of the required 50 in order to have a qualifying year.  The applicant has been issued a 20 year letter (notification of eligibility for retired pay at         age 60).  

On 24 January 1996 the Army Reserve Personnel Center at St. Louis informed the applicant that his request for a one time waiver [of the requirement to earn 50 retirement points in order to remain in an active status] had been granted for the RYE in April 1995.  That agency also informed him that no additional waivers were authorized.

On 3 September 1996 the applicant was discharged from the Army Reserve.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Army Reserve Personnel Command at St. Louis.  That command indicated that a notification was forwarded to the applicant after the retirement year ending in April 1995 at his Irving, Texas address.  The applicant responded by requesting a waiver, and it was granted.  He was again contacted after his retirement year ending in April 1996, with the letter and option form being sent to him at the same Irving, Texas address.  No reply was received and he was discharged in accordance with the provisions of  the applicable Army regulation.  That command recommended that his request be denied.

A copy of this advisory opinion was forwarded to the applicant on 17 March 1999 at his last listed address, a Dallas, Texas, post office box, that he furnished the  Army Reserve Personnel Command in October 1998.  In his 9 April 1999 rebuttal (COPY ATTACHED) to this advisory opinion, mailed from a Hot Springs, Arkansas address, the applicant stated that he completed and promptly forwarded the form in which he requested transfer to the Retired Reserve, upon notification to do so.  He stated that he had not received the notification letter informing him of his options, thereby not receiving due process; and failure of receipt of this letter, dated in April 1996 unfairly penalizes him.  Had he received notification, he would have requested transfer to the Retired Reserve, which he is now requesting.  Transfer to the Retired Reserve is at no significant cost to the government vis-a-vis his discharge.

Army Regulation 135-91 defines Army Reserve service obligations and prescribes policies and procedures governing the various types of service obligations and participation requirements.  Paragraph 3-2 states in pertinent part, that soldiers assigned to control groups have participation requirements. Those not directed to participate in some phase of training for which they get pay are satisfactory participants if they complete and promptly return all military correspondence, promptly report any change of address to the Army Reserve Personnel Command, and comply with other requirements imposed by that command.  

Paragraph 3-3.2 states in pertinent part, that a Reserve officer or warrant officer or enlisted soldier who has accrued 20 years of qualifying service for retirement pay must attain 50 retirement points annually to be retained in an active status in the Selected Reserve, Individual Ready Reserve, or Standby Reserve (Active List).  A soldier who fails to attain 50 points by the anniversary of his retirement year ending date will be processed for removal from active status per Army Regulation 135-175.

Paragraph 4-4.2 states in pertinent part that an assigned member of the IRR or IMA will be determined to be an unsatisfactory participant when he fails to report a change of address to the Army Reserve Personnel Command.

Army Regulation 135-175 provides policy, criteria, and procedures for the separation of officers of the Army Reserve.  Paragraph 4-4 states in pertinent part that members of the Army Reserve will be removed from an active status for any of a number of reasons, with or without the officer’s consent regardless of the length of service.  One of the reasons listed for removal from an active status is the failure to earn sufficient retirement points for retention.  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member), or, if eligible, transfer to Control Group (Inactive).  An officer who is removed from active status for any reason [as indicated in that paragraph] 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.   

Army Regulation 140-10, Chapter 6, provides policies and procedures for transfer to the Retired Reserve.  Paragraph 6-1 states, in pertinent part, that assignment to the Retired Reserve is authorized if a soldier has completed a total of 20 years of active or inactive service in the Armed Forces.  Eligible soldiers must request transfer. 

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(s), it is concluded:

1.  The applicant’s discharge was proper.  He was notified of his options, i.e., transfer to the Retired Reserve, discharge, after his RYE in April 1996, as indicated in the advisory opinion from the Army Reserve Personnel Command. The Army Reserve Personnel Command made proper notification to him at the address he had provided to that command.  And it was his responsibility to notify that command if his address had changed.  Nevertheless, the applicant was aware that he had to be removed from an active status, simply based on his request, and the approval of that request, for a one time waiver (in January 1996), followed by his apparent failure to earn 50 retirement points for the RYE in April 1996.  He could have easily forestalled the discharge action, simply by contacting personnel at St. Louis. 

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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.

4.  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:

________  __jlp___  ___dw___  GRANT

________  ________  ________  GRANT FORMAL HEARING

___gdp__  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999019402	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990715	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 136.00		
2.		
3.		
4.		
5.		
6.