PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            5 December 2000
	DOCKET NUMBER:   AR2000042641

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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, in effect, that his discharge from the United States Army Reserve (USAR) be voided and that he instead be transferred to the Retired Reserve.

3.  The applicant states, in effect, he was discharged from the USAR based on his failure to respond to an option statement forwarded to him from the Army Reserve Personnel Command (ARPERSCOM) in July 1997.  He claims that the reason for his not responding was that he never received the option statement because he no longer lived at the address to which it was mailed.  He indicates that the form was sent to Fairfax, Virginia after he had already transferred overseas to work in the United Arab Emirates in March 1997, where he remained until March of 2000.  He states that his ex-wife received the option statement, which had a suspense date in August 1997, and did not forward it to him or advise him that it had been received.  He discovered the letter and option form when he was unpacking several boxes of old letters and files which had been placed in storage.  He contends that had he been afforded the opportunity he would have given his preference to be transferred to the Retired Reserve and since he was not given this option he requests that his records be corrected to reflect this choice at this time.  

4.  The applicant’s military records show that he was appointed a Second Lieutenant (2nd LT) in the USAR on 8 August 1969 and that he completed over 20 years of qualifying service for retired pay prior to being discharged in the rank and pay grade of lieutenant colonel/0-5 (LTC/0-5) sometime in August 1997.  

5.  The record contains a letter to the applicant from a member of the 
90th Regional Support Team, Soldier Support Division, ARPERSCOM, dated 
11 May 2000.  This letter responds to the applicant’s inquiry in regard to his election of options.  This letter states that ARPERSCOM records showed that he received a non-participation letter and option form with a suspense date in August 1997, which he failed to complete and return by the suspense date.

6.  This ARPERSCOM official further commented that, under the provisions of Army Regulation 140-10, an officer who has accrued over 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.  In addition, it indicates that any officers who fail to meet that 50 point requirement by the anniversary of his retirement year ending date will be removed from an active status.  It also stipulated that officers who fail to apply for transfer to the Retired Reserve within 30 days from the date they are advised of their options will be discharged.  The letter concludes by advising the applicant that if he believes his discharge from the USAR was the result of an error he may apply to this Board for relief.  

7.  The last available Chronological Statement of Retirement Points (DARP Form 249) on file, pertaining to the applicant, is dated 1 April 1989.  This document confirms that as of that date the applicant was discharged he had accrued a total of 20 years, 11 months, and 19 days of service creditable for retired pay.

8.  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 contains guidance on removal from active status and paragraph 7-1a indicates that soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible. 

9.  Paragraph 7-3.1 contains guidance on removing members for
non-participation.  It states, in pertinent part, that an officer 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 and an officer who fails to meet this requirement by the anniversary of his or her retirement year ending (RYE) date, will be removed from active status.

CONCLUSIONS:

1.  The Board notes the applicant’s contentions and finds that there is a sufficient equity basis on which to grant relief.  The record seems to indicate that the applicant’s discharge was automatically effected, without prejudice, as a result of the regulatory provisions pertaining to members who fail to comply with regulatory participation requirements.  These provisions mandate discharge unless a member is eligible for and requests transfer to the Retired Reserve within 30 days of being advised of his options. 

2.  While it cannot be conclusively established from the evidence or record, the Board has no reason to question the applicant’s explanation for his not requesting transfer to the Retired Reserve and accepts as fact his claim that he never received the letter advising him of his options in connection with his 
non-participation removal from an active status. 

3.  Given the facts and circumstances of this case, the Board finds sufficient reason to believe the applicant was never properly counseled and afforded the opportunity to choose between discharge and transfer to the Retired Reserve, and thus, the Board concludes that relief is warranted.

4.  The record shows that the applicant was fully eligible for transfer to the Retired Reserve at the time he was selected for removal from an active USAR status.  In addition, it appears obvious that he would have requested that option had he been aware of it at the time.  Therefore, the Board finds, in the interest of equity, that it would be appropriate to void the applicant’s August 1997 discharge from the USAR and to transfer him to the Retired Reserve effective the same date. 

5.  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 August 1997 discharge from the USAR pertaining to the individual concerned and by showing that he was instead transferred to the Retired Reserve on that same date.  

BOARD VOTE:  

___amc _  __jam___  ___alr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Ann M. Campbell____
		        CHAIRPERSON

INDEX

CASE ID	AR2000042641	
SUFFIX		
RECON		
DATE BOARDED	2000/12/05	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/08/DD	
DISCHARGE AUTHORITY	AR 140-10	
DISCHARGE REASON	Non-Participation	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  333	135.0100	
2.		
3.		
4.		
5.		
6.