MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 November 2000
	DOCKET NUMBER:   AR2000043123

	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. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale, Jr.		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 he be allowed to transfer from the United States Army Reserve (USAR) Retired Reserve to a Troop Program Unit (TPU) or the Individual Ready Reserve (IRR).  

APPLICANT STATES:  In effect, that his TPU is short of qualified personnel and he requests transfer from the Retired Reserve to this unit.  He claims that he could serve another four to six years if needed.  He concludes that due to the unit’s shortage of personnel he could be helpful at this time.  

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

On 30 September 1996, the applicant was involuntarily reassigned from his TPU to the Retired Reserve, under the provisions of Army Regulation 140-10, by reason of having reached his maximum years of service in a TPU.  In connection with this transfer to the Retired Reserve he was authorized to receive special separation pay.  

On 21 September 1996, the applicant completed a Department of the Army (DA) Form 4187 (Personnel Action) request.  In this request he indicated that that he had completed 21 years of qualifying service for non-regular retired pay and that he understood that he was being involuntarily separated from the Selected Reserve for reasons other than inactivation, deactivation, reorganization, or relocation and he must be separated.  In addition, after being fully counseled on his options, the applicant requested that he be transferred to the Retired Reserve with special separation pay in connection with this involuntary action. 

In connection with processing of this case an advisory opinion was requested of and received from the Army Reserve Personnel Command (ARPERSCOM).  In this opinion, the Chief of the 89th Regional Support Team indicates that the applicant was removed from a USAR active status and assigned to the Retired Reserve due to his having reached his maximum years of service in a TPU and is therefore, not eligible for transfer back to a TPU.  

In addition, they claim that the applicant received special separation pay in connection with his transfer to the Retired Reserve, which prevents him from being reassigned out of the Retired Reserve and back to an active status without the express consent of the Secretary of the Army based on an indispensability determination.  In addition, any transfer out of the Retired Reserve would, by law, require the applicant to reimburse the government any special separation pay he received in connection with his original transfer to the Retired Reserve.  Finally, ARPERSCOM officials opine that for the reasons indicated and in accordance with Army Regulation 140-10, the applicant is not eligible for transfer to a TPU at this time.  On 17 August 2000, the applicant was provided a copy of this advisory opinion and given an opportunity to respond.  To date he has failed to reply.  
Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers.  Chapter 7 provided guidance on the removal of USAR soldiers from an active status in a TPU based on their having reached their maximum years of service based on completing the necessary years of service creditable for retirement pay.  The regulation also indicates that members in the Retired Reserve for this reason are not eligible to transfer back to the Ready Reserve unless they are granted a statement of indispensability by the Secretary of the Army.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board noted the applicant’s request for transfer from the Retired Reserve to a USAR TPU or the IRR.  However, after careful evaluation of the evidence, the Board concludes approval of this action would not be appropriate.  

2.  The applicant’s involuntary transfer to the Retired Reserve was accomplished in accordance with applicable regulations based on his having reached his maximum years of service in a TPU and his being eligible for non-regular retired pay at age 60.  

3.  By regulation, in order for a member of the Retired Reserve to be transferred back to a USAR active status a statement of indispensability must be provided by the Secretary of the Army.  The Board finds there is not a sufficiently compelling basis on which to base granting the applicant this indispensability status.  Thus, the relief requested by the applicant is not warranted.   

4.  Further, in view of the fact that the applicant elected to receive special separation pay in connection with his involuntary transfer to the Retired Reserve, the Board finds no persuasive equity argument that would support allowing the applicant to return to an active USAR status.  

5.  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.

6.  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

___mkp__  ___jhk __  __wh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000043123	
SUFFIX		
RECON		
DATE BOARDED	2000/11/28	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  341	136.0300	
2.		
3.		
4.		
5.		
6.