MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:          

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:   AR1999025475

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

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

The applicant states that he was never informed that he could transfer to the Retired Reserve, and he never received a discharge order.  He did receive notification of eligibility for retired pay at age 60 (20 year letter).  He took a physical examination in order to remain in the Army Reserve after 20 years, and forwarded the documents on four occasions to St. Louis; however, they were lost.  He would like to retain his association with the Army Reserve.  He never agreed to being discharged.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant entered on active duty in 1964 and was discharged in 1973, attaining the rank of Sergeant.  He served in the Pennsylvania Army National Guard, and thereafter in the Army Reserve.

The applicant was assigned to the 357th Transportation Company in Greencastle, Pennsylvania on 2 June 1982 from the Army Reserve Control Group (Reinforcement) at St. Louis.  On 28 October 1984 he reenlisted in the Army Reserve for three years.   

On 10 January 1987 the applicant requested transfer to the Army Reserve Control Group (Reinforcement).  His request was approved and he was assigned to that control group effective on 13 February 1987.  He was discharged from the Army Reserve on his ETS (separation date) on 27 October 1987.

Army Regulation 135-178 provides for the separation of Army Reserve enlisted soldiers.  Paragraph11-1 states in pertinent part that a soldier will be discharged on expiration of his term of enlistment.  No soldier will be held in service beyond the normal expiration of term of service unless expiration of term of service is extended by law.

Army Regulation 140-10, chapter 6, provides for assignment to the Retired Reserve, and states that eligible soldiers must request transfer to the Retired Reserve.

In a 29 October 1999 memorandum (COPY ATTACHED) the Secretary of Defense put forth a new policy which entitles the applicant as a former member of the Reserve components who is eligible to receive retired pay at age 60 under 10 USC section 12731, but who has terminated his Reserve status to entitlement to receive benefits provided for under chapter 54, title 10, USC. 

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 27 October 1987, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 27 October 1990.

The application is dated 24 March 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___rjw___  __ eb___  ___rvo___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999025475	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  338	135.01	
2.	142.00	
3.		
4.		
5.		
6.