PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            9 March 2000
	DOCKET NUMBER:   AR1999023946

	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. Jessie B, Strickland		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Ms. Carol Jo Suiter		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 should have been transferred to the Retired Reserve instead of being discharged because he received his 20-year letter from the National Guard before being transferred to the USAR.  He also states that he served as a company commander in Operation Desert Storm in 1990 to 1991 and after returning to the United States he maintained his affiliation with the active Reserve component until 1996, when due to personal happenings in his life, he left the National Guard and was transferred to the USAR.  He further states that upon receiving orders indicating that he was discharged from the USAR, he immediately contacted officials at the Total Army Personnel Command (ARPERSCOM) and to date has received no satisfaction.  He also states that he continued to serve so that he could take advantage of the benefits available to soldiers in the Retired Reserve and now he is being denied those benefits.

4.  The applicant’s military records show that on 30 June 1993 the National Guard Bureau notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (1 August 2014).

5. On 12 November 1998 the applicant was honorably discharged from the USAR in the rank of major.  A review of the available records failed to show that the applicant was notified that he was being discharged or that he had the option of being transferred to the Retired Reserve.

6.  There is evidence that as early as January 1999 the applicant contacted his congressional representatives to ask for assistance in obtaining a transfer to the Retired Reserve and was informed that he had to apply to this Board to resolve the matter.  The applicant also contends that he contacted officials at the ARPERSCOM on 28 November 1998 after receiving the discharge orders.

7.  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. 

8.  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 not afforded the opportunity to be transferred to the Retired Reserve.  It is also reasonable to presume that given his qualifying years of creditable service for retired pay purposes, had he been afforded the opportunity prior to discharge, 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 12 November 1998 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 12 November 1998 discharge from the USAR of the individual concerned; and

b.   by showing that he was transferred to the Retired Reserve effective 12 November 1998.

BOARD VOTE:  

____cs__  ___jh____  __tdh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______June Hajjar_______
		        CHAIRPERSON

INDEX

CASE ID	AR1999023946	
SUFFIX		
RECON		
DATE BOARDED	2000/03/09	
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.