MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 December 2000
	DOCKET NUMBER:   AR2000042677

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Richard T. Dunbar		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 orders involuntarily transferring him from his United States Army Reserve (USAR) Troop Program Unit (TPU) to the Standby Reserve be revoked, and that he be transferred to the Retired Reserve with Special Separation Pay (SSP), under the provisions of the Selected Reserve Transition Benefit Program (SRTBP), under the terms of his original election option statement of December 1993.  

APPLICANT STATES:  In effect, that in October 1993 he was notified, by officials of the 96th Army Reserve Command (ARCOM), Salt Lake City, Utah, that effective 1 July 1993 he had reached the maximum years of service for his grade; and that he would be temporarily retained in the Selected Reserve pending Congressional approval and finalization of the SRTBP. 

In addition, the applicant was notified that he would be given the option of being discharged, transferred to the Individual Ready Reserve (IRR), or being transferred to the Retired Reserve not later than 10 December 1993.  In December 1993, he completed his option form and elected to be transferred to the Retired Reserve with SSP.  He claims that between October and December 1993 he awaited orders implementing that decision and during this period he periodically contacted his unit administrator to clarify his status.  He indicates that his unit administrator repeatedly advised him that there was no information in regard to why orders had not been published and received at the unit effecting his transfer to the Retired Reserve.  

The applicant further claims that in January 1994, without his knowledge, his employer, the Federal Aviation Administration (FAA), reported him as being a key Federal employee.  This action was endorsed by United States Army Reserve Command (USARC), Atlanta, Georgia, even though he had in fact been an active member of the 244th Personnel Services Company (PSC), Salt Lake City, Utah, a TPU, from March 1985 until his transfer in July 1994.  He also claims that prior to this action he had never been required by his employer to complete an exemption from key employee status request.  His only requirement until that point had been to submit an annual status report on his membership in the USAR.  Subsequent to his being transferred to the Standby Reserve, the FAA attempted to correct this situation when they admitted their error by allowing him to complete a backdated request for exemption from key employee status.  

He indicates that the FAA designating him a key employee began a series of actions that resulted in his USAR career being involuntarily and prematurely ended.  He was removed from USAR active status; deprived of his additional years of service credit, pay, and retirement points, from the period between his discharge and his retirement.  He also contends he lost retired pay, SSP, and the benefits of the SRTBP, and that had it not been for this action being taken he would have served continuously from 1 March 1985 through 11 October 1999, and his total years of service would have been 30 years, 7 months, and 3 days. 

The notification that he had reached his maximum years of service for his grade also indicated that in order to qualify for SSP a member would have to be eligible and elect transfer to the Retired Reserve.  Required supporting documentation to confirm his eligibility for this option included an Army Reserve Personnel Command (ARPERSCOM) (20-Year) letter, verifying his eligibility for retired pay, and a Chronological Statement of Retirement Points for USAR TPU Soldiers (DARP Form 249-1-R).

Finally, he contends, in effect, that the FAA designating him a key employee began a series of actions that resulted in his USAR career being involuntarily and prematurely ended.  He was removed from USAR active status; deprived of his additional years of service credit, pay, and retirement points, from the period between his discharge and his retirement; and retired pay, SSP, and the benefits of the SRTBP.  He concludes that without this action his service would have been continuous from 1 March 1985 through 11 October 1999, and his total years of service would have been 30 years, 7 months, and 3 days. 

EVIDENCE OF RECORD:  The applicant's military records, although incomplete, show:

The applicant completed over 20 years of service in the USAR and was honorably discharged, in the rank of staff sergeant (SSG), on 28 July 1996.  

On 23 October 1993, an 96th ARCOM letter, subject: Enlisted Removals based on Total Years of Service (TYOS) and the SRTBP, was provided to the applicant. In this notification letter the applicant was advised that he had reached the maximum years of service for his grade as of 1 July 1993.  He was also informed that due to a pending Congressional bill, he would be retained in the USAR pending the finalization of the SRTBP, and would be discharged, transferred to the Individual Ready Reserve (IRR), or to the Retired Reserve not later than 
10 December 1993.  

This notification also advised that in order to receive SSP a member would have to be eligible for and request transfer to the Retired Reserve.  A request should include a 20-Year letter, an audit of his DARP Form 249 conducted by the unit, and a DARP Form 249-1R, which should be certified by the unit commander and the applicant.  The transition packet had to be completed and received by the ARCOM not later than 3 December 1993.  

On 4 December 1993, the applicant submitted his transition packet.  This included his option election statement in which he elected to be transferred to the Retired Reserve with SSP, and a statement signed by him and the unit administrator.  This indicated that according to his DARP Form 249 and counseling by his unit he had completed at least 20 years of qualifying service for retired pay and had reached his maximum years of service for his grade in accordance with paragraph 7-2, Army Regulation 140-10.  

In his transition packet, the applicant confirmed that he had been counseled on SRTBP benefits available to him based on the option he elected.  However, there is no evidence of record that explains the exact processing procedures followed in the submission or review of the applicant’s transition packet.  This includes no finality in regard to a higher headquarters determination in regard to the applicant’s eligibility for transfer to the Retired Reserve or a final decision on the approval or disapproval of the requested option. 

On 26 January 1994, the applicant’s civilian employer, the FAA, submitted a request, subject: Key Employee Determination, to Department of the Army Headquarters, Washington D.C., in which they certify the applicant as a key employee.  

On 10 June 1994, the United States Army Reserve Command (USARC), in a reply to the FAA request, approved their request to have the applicant designated a key Federal employee and provided a copy of Order Number 
94-168-001, dated 6 June 1994, which effected the applicant’s transfer to the USAR Standby Reserve, by reason of involuntary removal-designated as key Federal employee, effective 5 July 1994.  

On 1 July 1994, the applicant submitted a request to his employer requesting an exception to key Federal employee provisions and that this exception be granted and effective as of 9 November 1993. 

On 7 July 1994, the Manager of the applicant’s FAA control center submitted a letter indicating that the key Federal employee request had been submitted by the FAA without his knowledge and that the applicant had met all the requirements for key employee exemption.  He enclosed a retroactive exemption statement, signed and antedated by he and the applicant, effective 1 November 1993.  

On 6 October 1995, the applicant was issued a 20-Year letter by ARPERSCOM, which verified that he had completed the required years of service and that he would be eligible to receive retired pay at age 60.  

On 23 October 1995, a letter to the applicant’s Congressman, dated 23 October 1995, from ARPERSCOM officials, stated that their records confirmed that the applicant had completed 20 years, 11 months, and 23 days of qualifying service for retired pay as of 28 February 1995.  

On 28 July 1996, ARPERSCOM order D-07-664196, honorably discharged the applicant from the USAR, under the provisions of Army Regulation 135-178.  

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve (USAR) soldiers.  Paragraph 7-2, in effect at the time, provide for the removal of members of a TPU based on their having reached their maximum years of service in grade.  These soldiers were allowed to be transferred to the IRR.

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 he should have been transferred to the Retired Reserve with SSP in December 1993 based on the election he made in connection with his reaching his maximum years of service for his grade.  

2.  However, lacking specific evidence in regard to the decisional determinations made by the applicant’s chain of command, in regard to this transition packet and specifically pertaining to his eligibility for transfer to the Retired Reserve with SSP, the Board is unable to clearly establish his entitlement to the requested remedy and thus finds relief is not warranted in this case. 

3.  The evidence does not verify that the applicant had completed at least 
20 years of qualifying service for retired pay, as of the 1993 date that he elected the option of being transferred to the Retired Reserve with SSP, as was required under the provisions of the SRTBP.  

4.  The only confirmation of when the applicant completed the required years of qualifying service for retired pay is contained in the 23 October 1995 ARPERSCOM letter to the applicant’s Congressman, which verifies that the applicant had completed 20 years, 11 months, and 23 days of qualifying service for retired pay as of 28 February 1995.  

5.  Further, the record is void of and the applicant has failed to provide any documentation that establishes firmly that an affirmative determination was made by the chain of command in regard to the unit’s confirmation that he was eligible for the SRTBP and transfer to the Retired Reserve with SSP in December 1993 when he completed his transition packet. 

6.  Additionally, the Board is unable to ascertain the validity of the action taken by the applicant and his FFA manager in regard to the antedated approval of his exemption to key Federal employee status.  While this is not a determinative factor in this Board’s decision, it does contribute more confusion to the facts and circumstances surrounding the applicant’s transition processing. 

7.  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 the aforementioned requirement.

8.  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

___jh____  __hof ___  ___rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042677	
SUFFIX		
RECON		
DATE BOARDED	2000/12/14	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1996/07/28	
DISCHARGE AUTHORITY	AR 135-178	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  333	135.0100	
2.		
3.		
4.		
5.		
6.