PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            7 December 2000
	DOCKET NUMBER:   AR2000043200

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		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, that the order published in 1991 which effected his honorable discharge from the USAR was based on documents forged by someone at the 7581th United States Army Garrison (USAG), Fort Buchanan, Puerto Rico, which requested he be discharged from the USAR.  He claims this action was accomplished without his knowledge or consent and he was unaware of it until he was informed of his status by an official from the Army Reserve Personnel Command (ARPERSCOM).  This official advised him that there was a problem with his status and provided him the pertinent documents.  He reasserts that this discharge action was taken without his consent and that he did not sign any documents requesting to be discharged.  He goes on to request, under the Freedom of Information Act, that he be informed of why he was discharged without his consent and who was responsible for that action.  He also requests that he be provided a copy of the original discharge order which changed his status and finally he requests that at this time he be transferred back to the Retired Reserve.  He provides copies of his signature, which he indicates makes clear that the document signed which effected his discharge was forged.  

4.  The applicant’s military records show that he was appointed a Second Lieutenant (2nd LT) in the USAR on 27 October 1967 and that he completed over 20 years of qualifying service for retired pay prior to being discharged in the rank and pay grade of major/0-4 (Maj/0-4).

5.  The record contains a memorandum from the Commander of Headquarters Company, 7581st USAG, subject: Request for letter of Notification of Eligibility for Retired Pay, dated 21 February 1990, pertaining to the applicant. This document indicates that the applicant had completed the necessary qualifying service for retired pay at age 60 and it requested that he be issued a letter to that effect by ARPERSCOM.  Enclosed with this memorandum were supporting retirement point documents which confirmed he completed over 20 satisfactory years of service for retirement. 

6.  There is a Department of the Army (DA) Form 4851-R (Request for Reserve Component Assignment or Attachment) on file which shows that the applicant requested release from his Troop Program Unit (TPU) and transfer to the USAR Control Group, St. Louis, Missouri.  Accordingly, this transfer was authorized and directed in Orders Number 59-7, dated 29 May 1990, issued by the 7851st USAG, to be effective 25 May 1990.  

7.  On 7 January 1991, an ARPERSCOM memorandum, subject: Options Upon Nonselection for Promotion After Second Selection, was forwarded to the applicant.  This document advised the applicant that he was being provided the options available to him as a result of his second nonselection for promotion to the next higher grade.  It advises the applicant that he would be discharged within 90 days of the selection board reporting its findings unless he requested transfer to the Retired Reserve for which he was eligible.  There is no indication that the applicant responded to this memorandum within the allotted 90 days. 

8.  On 19 February 1991, Order Number D-02-900310 was published by the ARPERSCOM.  This order directed the applicant’s honorable discharge from the Ready Reserve, effective 21 December 1990.  

9.  On 19 October 1992, the applicant requested of ARPERSCOM that he be discharged from his present status and transferred to the Retired Reserve as soon as possible.  

10.  On 22 March 1993, as a result of the applicant’s request, ARPERSCOM published Orders Number C-03-310149.  This order authorized the applicant’s transfer from the USAR Control Group to the Retired Reserve by reason of his completion of 20 or more years of Reserve service, effective 22 April 1993.  

11.  On 2 September 1994, ARPERSCOM published Orders Number 
C-03-310149R which revoked Order Number C-03-310149 which had transferred the applicant to the Retired Reserve.

12.  Army Regulation 135-175 provides the policies, standards, and procedures governing the administrative separation of officers from the Reserve components.  It states, in pertinent part, that orders discharging an officer will not be revoked or the effective date changed after the effective date of the discharge unless there is evidence of manifest error or fraud. 

CONCLUSIONS:

1.  The Board notes the applicant’s contentions and finds that there is a sufficient equity basis on which to grant relief.  However, the Board wishes to make clear that it is not an investigative body and is unable to respond to his request for a determination of fraud.  

2.  Conversely, the Board can state unequivocally that during its review of this case no evidence was discovered that points to any indication of any fraudulent actions associated with the applicant’s discharge from the USAR.

3.  The evidence or record shows that it is likely that the applicant’s discharge was automatically effected, without prejudice, as a result of the regulatory provisions pertaining to members twice not selected for promotion.  These provisions mandate discharge within 90 days of promotion board findings being reported.  

4.  While it cannot be conclusively established from the record, it is the belief of the Board that the applicant did not receive the January 1991 ARPERSCOM notification that advised him that he would be discharged within 90 days unless he elected to request transfer to the Retired Reserve.  This appears to have resulted in the applicant being automatically discharged from the USAR on 
21 December 1990. 

5.  The applicant never requested transfer to the Retired Reserve until sometime in October 1992 when it appears that he was erroneously advised by an ARPERSCOM official that he had this option.  Once requested and accomplished, ARPERSCOM officials discovered that the applicant had already been discharged and revoked the order transferring him to the Retired Reserve. 

6.  The record contains both an order effecting the applicant’s discharge and an order transferring him to the Retired Reserve, which was later revoked.  Given this, the Board finds sufficient reason to believe that the applicant was never properly counseled and afforded the opportunity to choose between discharge and transfer to the Retired Reserve.  Thus, the Board concludes relief is warranted in this case. 

7.  The record shows that the applicant was fully eligible for transfer to the Retired Reserve at the time he was notified of his second nonselection for promotion.  It appears obvious that he would have requested that option had he been aware of it at the time and thus, the Board finds, in the interest of equity, that it would be appropriate to void the applicant’s 21 December 1990 discharge from the USAR and to transfer him to the Retired Reserve effective that same date. 

8.  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 21 December 1990 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:  

___jpi___  __ewl ___  __rvo ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR2000043200	
SUFFIX		
RECON		
DATE BOARDED	2000/12/07	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/12/21	
DISCHARGE AUTHORITY	AR 135-100	
DISCHARGE REASON	Promotion Non-Selection	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  338	136.0000	
2.		
3.		
4.		
5.		
6.