PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            7 June 2000
	DOCKET NUMBER:   AR2000038895

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Steuve		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 nonselected for retention by the Qualitative Retention Board (QRB) he was transferred to the USAR Control Group (Reinforcement) and was subsequently discharged without the benefit of being able to request transfer to the Retired Reserve.  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 on 10 January 1989 the Army Reserve Personnel Command (ARPERSCOM) notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (9 August 2006).

5.  The ARPERSCOM also notified him on 24 April 1989 that he had been nonselected for retention by the QRB and that he had the option of being discharged, transferred to the USAR Control Group (Individual Ready Reserve), or transferred to the USAR Control Group (Retired).  The applicant selected transfer to the USAR Control Group (Individual Ready Reaserve).  However, he was transferred to the USAR Control Group (Reinforcement) on 15 May 1989.

6.  On 14 February 1990 he was honorably discharged from the USAR.  There is no indication that in the available records that he was notified in advance of his impending discharge.

7.  In the processing of this case a staff advisory opinion was obtained from the ARPERSCOM, which opined, in effect, that the applicant’s scheduled expiration of term of service (ETS) was 9 July 1989; however, he was accessed into the strength of the USAR Control Group (Individual Ready Reserve) on 2 February 1990 and discharge orders were requested at that time.  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 14 February 1990 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 14 February 1990 discharge from the USAR of the individual concerned; and by showing that he was transferred to the Retired Reserve effective 14 February 1990.

BOARD VOTE:  

__esc___  __jps ___  __mkp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Margaret K. Patterson____
		        CHAIRPERSON

INDEX

CASE ID	AR2000038895	
SUFFIX		
RECON		
DATE BOARDED	2000/06/07	
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/TRAN RET USAR	
3.		
4.		
5.		
6.