MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            31 May 2000
	DOCKET NUMBER:   AR2000034983

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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:  In effect, that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.

APPLICANT STATES:  In effect, that he was discharged because of his failure to maintain weight standards and pass the Army Physical Fitness Test (APFT) and due to a lack of knowledge on his and the unit administrator’s part, it was assumed that he would be transferred to the Retired Reserve because he had received his 20-year letter.

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

He was initially inducted in New Orleans, Louisiana on 9 February 1970 and served as a cook until he was honorably released from active duty on 8 October 1971 and was transferred to the USAR Control Group (Annual Training).  

On 1 January 1975 he transferred to the USAR Control Group (Ready) where he was assigned to a troop program unit (TPU) in New Orleans.  He was promoted to the pay grade of E-7 on 12 September 1983 has continued to serve in a TPU in New Orleans until he was honorably discharged from the USAR on 13 August 1996. 

A review of his records shows that he was flagged in April and May 1995 for an APFT failure and entry into the weight control program.  His records also show that notices were sent to the applicant for his failure to attend scheduled unit training assemblies in January 1995 and November 1995.  His records also indicate that he was not eligible to reenlist.

On 22 September 1995 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 (11 December 2008).  

On 2 December 1995 the applicant’s commander submitted a request to have the applicant transferred.  Officials at the Regional Support Command returned the application without action and instructed officials at the Theater Army Command that the applicant was eligible for transfer to the Retired Reserve and that the applicant must sign a DA Form 4651-R (Request for Reserve Component Assignment or Attachment) with the correct reason and authority cited.  It further advised that if the applicant elected to separate on his scheduled expiration of term of service (ETS), he would not be entitled to retirement benefits.  

On 25 July 1996 (7 months later) the Theater Army Command returned the request for transfer (requesting ETS orders) to the Regional Support Command. The request indicates that all efforts made by the command and the inspector general’s (IG) office to persuade the applicant had been unsuccessful.  Included with the request was a letter from officials at the IG’s office indicating, in effect, that they had contacted the applicant telephonically on 21 July 1996 and that he had agreed to appear in person to sign the DA Form 4651-R but had failed to do so.  The IG’s office recommended that his packet be forwarded to the Regional Support Command for final action.  

On 13 August 1996 the Regional Support Command published orders discharging the applicant from the USAR.

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. 

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.

Due to recent Departmental changes, certain benefits, such as commissary and post exchange privileges, accrue to Reservists with more than 20 years of qualifying service who are transferred to the Retired Reserve that do not accrue to those who are discharged.

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

1.  The applicant’s honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record.  The applicant was clearly afforded the opportunity to transfer to the Retired Reserve or to be discharged and yet took no action at the time he was notified to ensure that his desire to be transferred to the Retired Reserve would be accomplished.  Therefore, due to the lack of action on his part after being properly notified, he was properly discharged and there is no basis to change a properly executed discharge at this time.
3.  Although his discharge will have no effect on his right to apply for Retired Pay at age 60, his failure to elect transfer to the Retired Reserve vice discharge will cause him to not be subject to recall; but will deny him retirement benefits until he becomes eligible for retired benefits at age 60.

4.  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.

5.  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:

________  __jev ___  __jpi ____  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sk____  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000034983	
SUFFIX		
RECON		
DATE BOARDED	2000/05/31	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	2 to 1 vote to GRANT	
REVIEW AUTHORITY		
ISSUES         1.  333	135.0100/TRANS TO RET RES	
2.		
3.		
4.		
5.		
6.