MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 February 2001
	DOCKET NUMBER:   AR2000041681

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 United States Army Reserve (USAR) be voided and that he be allowed to return to the Individual Mobilization Augmentee (IMA) position to which he had been assigned.

APPLICANT STATES:  In effect, that his request for a waiver to his nonparticipation in the United States Army Reserve (USAR), based on not having accrued 50 points by his retirement year ending (RYE) date in 1999, was not processed and completed on time due to several administrative problems and errors.  He cites two specific errors that contributed to his being discharged from the USAR.  The first relates to the untimely processing of his records in connection with his request to transfer from his Troop Program Unit (TPU) to the Individual Ready Reserve (IRR) and the second pertains to his nonparticipation waiver request never being received by the 81st Regional Support Team (RST). He concludes by indicating that his waiver request is now in the hands of the Board.  Enclosed is an expanded statement from the applicant outlining his administrative error claims in more specific detail.

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

On 13 March 2000, he was discharged from the USAR after completing 20 years of qualifying service for retired pay.  At the time of his discharge he was assigned to the IRR and held the rank and pay grade of sergeant major/E-9.  

The evidence of record includes Orders Number 257-13, dated 14 September 1998, published by Headquarters, 81st RST, Birmingham, Alabama, which authorized the applicant’s transfer to the IRR, effective 30 September 1998.  

On 13 October 1999, the Army Reserve Personnel Command (ARPERSCOM), published a nonparticipation memorandum pertaining to the applicant.  It informed him that by regulation a member who had completed over 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in the USAR and that members that fail to accrue these points by their RYE date will be removed from an active status.  It also advised him that his records showed he had not accrued the required 50 points during the retirement year as of his RYE date.

An option election form was enclosed with the nonparticipation memorandum, which the applicant was required to complete and submit by an established suspense date of 17 November 1999.  This election form contained language that specifically informed him that failure to elect an option or to comply with the suspense date would result in his automatic discharge from the USAR.  This election statement also provided him with the following options:  transfer to the Retired Reserve; request a waiver; discharge from the USAR; or to verify that he had in fact earned 50 retirement points for the most recent retirement year.  

On 22 December 1999, over a month after the established suspense date, the applicant completed the option statement.  He requested a one-time-basis waiver on his nonparticipation.  He included a letter with his option statement, in which he provided his reasons and justification for the waiver request.  The evidence of record contains no indication that this waiver request was ever received or acted upon by ARPERSCOM, and on 13 March 2000, he was discharged from the USAR.

On 14 April 2000, in reply to his waiver request, the Chief of the 81st RST at ARPERSCOM informed the applicant that based on a ruling from the Comptroller General, a properly issued discharge once constructively delivered to an individual, may not be revoked.  The only exception to this is when the agency issuing the order does not have discharge authority or administrative error had been found.  The Chief of the 81st RST opined that his discharge from the USAR was properly issued and that there was no reason for revocation.  

On 5 December 2000, in connection with the processing of this case, a staff member of the Board requested of the applicant, by letter, that he provide a copy of his discharge order from the USAR, any decisional documents from the parties involved in the processing of his waiver request, and any findings and conclusions provided him by ARPERSCOM in regard to any of the processing issues he raised in his application to this Board.  In addition, the applicant was asked to provide any other third party statements or documentation in support of his waiver request and to date, the applicant has failed to respond. 

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers.  Chapter 7 provides guidance pertaining to the removal of members from an active Reserve status.  Paragraph 7-3.1 contains removal rule 2, which pertains to nonparticipation.  It states, in pertinent part, that an enlisted soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, Individual Ready Reserve, or Standby Reserve (Active List).  It further indicates that an enlisted soldier who fails to attain 
50 points by the anniversary of his or her RYE date, will be removed from active status.   

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 Board noted the applicant’s contention that his discharge from the USAR was the result of administrative error in the processing of his request for a waiver to his removal from active status due to nonparticipation.  However, after carefully evaluating the available evidence, the Board finds this claim lacks merit. 
2.  The evidence of record clearly shows that the applicant was properly notified of his nonparticipation status and that he was given ample opportunity to submit his option election statement and to request a waiver within the time allowed.  In addition, notwithstanding his assertions to the contrary, there is no evidence that suggests that he took appropriate measures to resolve the adjudication of his waiver request at the time it was being processed. 

3.  Therefore, based on the totality of the facts and circumstances, the Board finds that the applicant’s discharge from the USAR was proper and equitable and was not the result of administrative error. 

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 this 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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ja ___  __ls  ____  ___bjl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041681	
SUFFIX		
RECON		
DATE BOARDED	2001/02/01	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/03/13	
DISCHARGE AUTHORITY	AR 140-10	
DISCHARGE REASON	Nonparticipation 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1023	106.0010	
2.		
3.		
4.		
5.		
6.