MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 May 2000
	DOCKET NUMBER:   AR2000035199

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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:  That he wrote a letter before his departure from his USAR unit requesting that he be placed in the Inactive Reserve in order to gain additional points and opportunities for advancement.  However, he instead received orders discharging him from the USAR.  He further states that as a veteran with over 20 years of active and USAR service, this error should be corrected so that he can receive the benefits to which he is entitled.

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

The applicant was inducted in St. Louis, Missouri on 8 October 1968 and served until he was honorably released from active duty (REFRAD) on 25 August 1970 under the student early release program.  He was transferred to the USAR Control Group (Annual Training).  In 1972 he transferred to the USAR Control Group (Ready) and remained in that status through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 12 September 1984.

His records also show that all of his USAR service since 1977 has been that of a personnel management specialist and administrative specialist at the Army Reserve Personnel Command (ARPERSCOM), the Mobilization Support Detachment, and the USAR Forces School in St. Louis.  He last reenlisted on 5 November 1989 for a period of 3 years which gave him an expiration of term of service (ETS) of 4 November 1992.

On 30 November 1990 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 (24 August 2005).  The applicant submitted his Survivor Benefit Plan Election Certificate on 22 February 1991.

On 23 September 1992 the applicant’s Reserve Command in St. Louis published orders discharging him from the USAR effective 4 November 1992, his scheduled ETS. 

In the processing of this case a staff advisory opinion was obtained from the Total Army Reserve Personnel Command (ARPERSCOM) in St. Louis which opined, in effect, that the applicant was properly discharged on the expiration of his contract, that there was no error on the part of the Army, that the applicant had waited for 7 years before pursuing the matter, and that the applicant’s ability to be a productive mobilization asset in the USAR at this time was questionable.  The opinion was forwarded to the applicant for rebuttal and to date no response has been received.

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 (enclosed) , certain benefits, such as commissary and post exchange privileges, accrue to Reservists with more than 20 years of qualifying service for retirement at age 60 and who have terminated their Reserve status. 

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 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’s discharge orders were published in September 1992 for his discharge in November 1992 and there is no indication in the available records to show that the applicant took steps to either extend his enlistment or to reenlist prior to his ETS.

3.  Even if the Board accepted his contention that he desired to be transferred to the inactive Reserve, he still would have had to take some action to extend or reenlist to prevent being discharged.  The Board also notes that his entire career in the USAR has been served in St. Louis, where the ARPERSCOM and his official records are located.  Accordingly, the Board finds it reasonable to presume that the applicant concurred with the actions taken by the Department at the time; otherwise, he would have contacted the appropriate officials in St. Louis to ensure that his desires were made known. 

4.  The Board also finds it reasonable to presume that given his rank, years of experience, his military occupational specialty and the fact that he performed the majority of his service in St. Louis at the ARPERSCOM, he was aware that he would be discharged when his contract expired unless he requested transfer to the Retired Reserve.

5.  Although his discharge will have no effect on his right to apply for Retired Pay at age 60 or his entitlement to benefits, his failure to elect transfer to the Retired Reserve vice discharge has allowed him to not be subject to recall for the past 7 years.

6.  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.

7.  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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ewl___  __rvo___  ___jhk___  DENY APPLICATION

						Carl W.S. Chun
				       Director, Army Board for Correction
                                                                of Military Records

INDEX

CASE ID	AR2000035199	
SUFFIX		
RECON		
DATE BOARDED	2000/05/03	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  333	135.0100/TRANS RET RES	
2.		
3.		
4.		
5.		
6.