PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            1 June 2000
	DOCKET NUMBER:   AR2000038950

	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. James C. Hise		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Melvin H. Meyer		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 he requested transfer to the Retired Reserve and was instead discharged from the USAR.

4.  The applicant’s military records show that while serving as a USAR major he was twice nonselected for promotion to the rank of lieutenant colonel (LTC) on 24 February 1999.  He was furnished a notification of his election options to either request transfer to the Retired Reserve or be discharged.

5.  On 20 July 1999 he completed a Request for Reserve Component Assignment (DA Form 4651-R) in which he elected transfer to the Retired Reserve.  He submitted his request to his Division headquarters who published orders transferring him to the Retired Reserve effective 30 August 1999.

6.  However, the Division Headquarters failed to notified the Total Army Reserve Command (ARPERSCOM) of the applicant’s desires and as a result, orders were published by the ARPERSCOM on 27 July 1999 discharging the applicant from the USAR effective the same date. 

7.  In the processing of this case a staff advisory opinion was obtained from the ARPERSCOM Personnel Actions Branch.  It opined, in effect, that the Division Headquarters improperly published orders transferring him to the Retired Reserve and failed to notify the ARPERSCOM of the applicant’s desires so that the ARPERSCOM could publish the orders and accomplish the actions of transferring him to the Retired Reserve instead of discharging him from the USAR.  Officials at the ARPERSCOM opined that the applicant was improperly discharged from the USAR due the fault of the chain of command and recommended that his discharge orders be revoked and that his orders transferring him to the Retired Reserve on 30 August 1999 remain in effect.  The opinion was provided to the applicant for comment and he 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.

10.  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.

CONCLUSIONS:

1.  The applicant elected transfer to the Retired Reserve and his Division Headquarters published orders accomplishing the transfer; however, the ARPERSCOM had the responsibility for publishing such orders and were not properly notified by the applicant’s command before discharge orders were published.

2.  Therefore, it would be in the interest of justice to revoke his discharge orders published by the ARPERSCOM on 27 July 1999 and allow his orders transferring him to the Retired Reserve dated 15 July 1999 to remain in effect.

3.  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 revoking the discharge order (D-07-952361) pertaining to the individual concerned published by the ARPERSCOM on 27 July 1999 and allow his transfer to the Retired Reserve effective 30 August 1999 to be implemented.
BOARD VOTE:  

__jch____  ___mhm_  ___rvo __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____James C. Hise______
		        CHAIRPERSON

INDEX

CASE ID	AR2000038950	
SUFFIX		
RECON		
DATE BOARDED	2000/06/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  333	135.0100/TRANS TO RET RES	
2.		
3.		
4.		
5.		
6.