PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            12 April 2001
	DOCKET NUMBER:   AR2000048338

	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. Roger W. Able		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman		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 he thought he had been put into the Retired Reserve in October of 1997, in connection with his not being selected for retention by a Qualitative Retention Board (QRB).  However, in the fall of 
1998 he received a memorandum notifying him that he needed to take a physical examination, at which point he began to check on his status.  He claims to never have received any notification or orders indicating that he was being discharged and has never received any official documents since receiving an order transferring him to the USAR Control Group in October 1997.  

4.  The applicant’s military records show that he continuously served in the USAR from 3 December 1977 until 23 June 1999, when he was honorably discharged, in the rank of master sergeant (MSG).  The record also shows that he had completed two years of active duty in the Army of the United States, between 9 September 1965 until 8 September 1967, at which time he was released from active duty and transferred to the USAR, where he served until 
9 June 1971.

5.  The evidence of record includes a letter from the Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri, dated 21 March 1996, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This letter confirmed that the applicant had completed the required years of service necessary to be eligible for retired pay at age 60.

6.  On 15 January 1997, while the applicant was assigned to the 5th Chemical Training Battalion, Harvey, Illinois, a USAR Troop Program Unit (TPU), his unit commander notified him that his records would be reviewed by a QRB in March 1997.  The unit commander enclosed a 1st endorsement which informed the applicant of his option to transfer to the USAR Control Group, transfer to the Retired Reserve, or be honorably discharged, if he were not selected for retention by the QRB.  

7.  On 30 January 1997, the applicant completed and signed his option election endorsement, in which, he elected to be transferred to the Retired Reserve if he were not selected for retention.

8.  On 15 October 1997, Orders Number 288-17, issued by Headquarters, 
84th Division, Milwaukee, Wisconsin, directed the applicant be released from his TPU assignment and transferred to the USAR Control Group, ARPERSCOM, effective 15 October 1997, based on his non-selection for retention by the 1997 Enlisted Qualitative Retention Board. 
9.  Although there is no order on file that directs the applicant’s discharge from the USAR and the record is unclear as to the specific date he was in fact discharged, the applicant has indicated that he was told he was discharged from the USAR.  In support of this claim, he provides a letter he received from an ARPERSCOM personnel technician, dated 3 October 2000, in which the technician provided the applicant a copy of a Department of Defense (DD) Form 149 (Application for Correction of Military Records) and advised him to apply to this Board for a change in his status.

10.  The applicant also provided a copy of a Chronological Statement of Retirement Points (ARPC Form 249-2-E), dated 22 December 2000, which was prepared by ARPERSCOM.  The last period of service documented in this statement ends on 23 June 1999, which would indicate the applicant was discharged from the USAR on that date.  The form also confirms that the applicant had completed a total of 22 years of qualifying service for retirement on that date. 

11.  In connection with the processing of this case a member of the Board staff contacted the ARPERSCOM personnel technician responsible for the applicant’s record to determine when the applicant was discharged.  ARPERSCOM records indicated that the applicant was discharged on 23 June 1999 via Orders Number D-06-946-345, by reason of non-participation.  The record is void of any information or documentation that would indicate that the applicant was ever notified of or provided options in connection with his discharge from the USAR.  

12.  Army Regulation 135-205 (Enlisted Personnel Management) prescribes policies, responsibilities, and procedures for the Qualitative Retention Program (QRP).  Chapter 4 contains guidance on Qualitative Retention Boards.  Paragraph 4-7 contains procedures required to support the QRP.  It states, in pertinent part, that unit commanders will notify the member of pending board consideration and will indicate by endorsement the soldier’s preferred option, if not selected for retention, which include reassignment to the Retired Reserve; reassignment to the USAR Control Group; or honorable discharge.  In addition, it requires the soldier to complete the endorsement on the notification memorandum and return it to the unit commander within 10 days after receipt. 

13.  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. 

CONCLUSIONS:

1.  The evidence makes clear that the applicant complied with all regulatory requirements and submitted his properly completed election endorsement requesting that he be transferred to the Retired Reserve if he were not selected for retention in connection with his processing for the March 1997 Qualitative Retention Board.  However, he was instead transferred to the USAR Control Group when he was not selected for retention.

2.  It appears from available evidence that the applicant’s discharge from the USAR 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. 

3.  However, there is no evidence of record that shows the applicant was ever provided information and or options in connection with his discharge processing. Thus, the Board is compelled to accept his claim that he believed he had been transferred to the Retired Reserve subsequent to his non-selection for retention in 1997 and that he was unaware that he had been transferred to the USAR Control Group and subsequently discharged for non-participation.  

4.  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 therefore, concludes that relief is warranted.

5.  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 23 June 1997 discharge from the USAR and to transfer him to the Retired Reserve effective the same date. 

6.  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 23 June 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:  

___dh___  ___ra ___  ___rtd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Roger W. Able______
		        CHAIRPERSON

INDEX

CASE ID	AR2000048338	
SUFFIX		
RECON		
DATE BOARDED	2001/04/12	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/06/23	
DISCHARGE AUTHORITY	AR 140-10	
DISCHARGE REASON	Non-Participation	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  341	136.0300	
2.		
3.		
4.		
5.		
6.