MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 February 2001                   
	DOCKET NUMBER:   AR2000046819

	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	
	Mrs. Nancy Amos		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 be revoked and he be transferred to the Retired Reserve.

APPLICANT STATES:  That he never received the letter telling him that his expiration term of service (ETS) was coming up for renewal.  He received letters and orders to take a physical, which he completed on 15 July 2000.  He also was interviewed on 9 July 2000 by Department of Defense regarding his security clearance.  He presumes that since he received these letters he would have received the other letter except it appears it got lost.  

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

He was born on 20 September 1941.  After having had prior service in the Army National Guard, he enlisted in the U. S. Army Reserve (USAR) on 7 October 1976.  He was promoted to Master Sergeant, E-8 on 26 June 1989.  He was issued his notification of eligibility for retired pay at age 60 (his 20-year letter) on 14 May 1993.  On 3 July 1997, he reenlisted for 3 years in a Troop Program Unit with subsequent reassignment to the USAR Control Group (Reinforcement) making ETS 2 July 2000.

On 11 January 2000, the Army Reserve Personnel Command (AR-PERSCOM) sent the applicant a nonparticipation letter for failing to earn a minimum              of 50 retirement points as of the end of his most recent retirement year.           AR-PERSCOM requested he complete the Election of Options on the reverse of the letter and return it by 15 February 2000.  He apparently failed to receive the letter and so did not complete and return it.  

AR-PERSCOM issued orders on 8 June 2000 authorizing the applicant inactive duty training without pay to complete his periodical physical exam, which was scheduled on 15 July 2000.

On 11 July 2000, AR-PERSCOM issued orders discharging the applicant from the USAR effective 11 July 2000 under the authority of Army Regulation        135-178.

In the processing of this case an advisory opinion was obtained from                  AR-PERSCOM.  AR-PERSCOM provided a copy of the 11 January 2000 nonparticipation letter, noted that the applicant did not respond to the letter, and noted that Army Regulation 140-10 states that the applicant would be removed from an active duty status (given the circumstances of his case).  Therefore, he was discharged.

A copy of the advisory opinion was provided to the applicant for rebuttal.  He stated that he never responded to the nonparticipation letter because he never received it.  He questioned why he would continue to comply with all requests that were sent to him (regarding his physical exam and his security clearance) after the discharge date.  He stated that something is wrong with the system.

Army Regulation 135-178 establishes policies and procedures governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the USAR.  Chapter 11 states that no soldier may be held in service beyond the normal ETS unless the ETS is extended by law.  When through administrative error a soldier is not discharged on the actual date of completion of his or her term of enlistment or reenlistment, the soldier will be considered to have been retained beyond normal discharge date for the convenience of the Government.

Army Regulation 140-10 prescribes policies and procedures to assign, remove, or transfer USAR soldiers.  Chapter 7 states that an officer or enlisted soldier who has accrued 20years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the USAR.  Failure to do so may result in the member’s transfer to the Retired Reserve (only upon the member’s request) or discharge from the USAR.

In October 1999, guidance put out by the Under Secretary of Defense provided that former members of the Reserve Components are entitled to certain benefits.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve components soldiers.  Each qualified individual is responsible for submitting an application for retired pay  (DD Form 108) 6 months prior to age 60 and that those without a current military status may obtain the form from a local Reserve Component unit or by writing AR-PERSCOM.

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, it is concluded:

1.  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.

2.  The Board acknowledges that the applicant may not have received the         11 January 2000 nonparticipation letter.  However, notwithstanding the advisory opinion it appears that he was not discharged due to nonparticipation.  The discharge authority on his orders is listed as Army Regulation 135-178, not Army Regulation 140-10.  Therefore, his nonreceipt of the 11 January 2000 letter is immaterial in this case.

3.  The applicant was discharged under the provisions of Army Regulation     135-178 because his term of enlistment was up.  As a senior noncommissioned officer with numerous reenlistments to his credit, he should have been fully aware that his ETS was coming up and that he could not be retained beyond his ETS without taking steps to reenlist.  It was proper for AR-PERSCOM to have continued administrative processing of his physical exam -- although it was completed on 15 July 2000, by a Veterans Affairs hospital, it was initiated on       8 June 2000.  His security clearance interview was conducted prior to his discharge, by Department of Defense, who could not have been aware of his impending change of status.  It was reasonable for AR-PERSCOM, absent the question of his nonparticipation, to have presumed that he, a career soldier, would take last-minute action to reenlist or extend.  The fact that he did not choose to reenlist does not make AR-PERSCOM’s actions wrong or misguided nor has he shown how his discharge has been detrimental to any benefits to which he is entitled.

4.  The Under Secretary’s memorandum and attachment are provided to the applicant so he may utilize those administrative remedies to obtain the documents needed to authorize him the benefits to which he is entitled until he
reaches the age of 60 in September 2001.

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

__lls___  __jea___  __bjl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046819	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.