PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000
	DOCKET NUMBER:   AR2000037189

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

The following members, a quorum, were present:

	Mr. Orville W. Troesch		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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 after being passed over for promotion a second time he contacted officials at personnel and was informed that no action was necessary to be taken on his part.  He goes on to state that he did not become aware of his status until he moved near a military installation and attempted to get a commissary privilege card and was informed that he was not eligible due to his status.  He further states that had he been properly informed at the time he would have taken steps to transfer to the Retired Reserve.

4.  The applicant’s military records show that he was promoted to the rank of captain in the USAR on 30 December 1983.  

5.  On 3 March 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 (14 February 2008).  

6.  On 11 January 1993 the ARPERCEN published orders discharging him from the USAR effective 24 July 1992.

7.  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 discharged from the USAR due his nonselection for promotion to the next higher grade after a second consideration. The officials also indicated that while it is normal practice that a notification letter and option statement be provided in such cases, there is no record of any such notification or option statement having been provided to the applicant.  Officials at the ARPPERSCOM recommended that his request be granted.  The opinion was provided to the applicant who in turn concurred with it.

8.  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. 

9.  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 24 July 1992 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 by voiding the 24 July 1992 discharge from the USAR of the individual concerned; and by showing that he was transferred to the Retired Reserve effective 24 July 1992.

BOARD VOTE:  

__kan ___  ___mvt__  ___owt__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Orville W. Troesch, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2000037189	
SUFFIX		
RECON		
DATE BOARDED	2000/06/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000/VOID DISCH	
2.  341	136.0300/TRANS TO RET USAR	
3.		
4.		
5.		
6.