PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           22 March 2001                  
	DOCKET NUMBER:  AR2000049075

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Regan k. Smith		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 that he be placed in the Retired Reserve.

3.  The applicant states that because he did not receive an “attainment of maximum service” letter he did not respond with his retirement preference prior to the suspense date and therefore, he was automatically discharged instead of transferred to the Retired Reserve.  Despite repeated attempts, he was unable to convince the appropriate authorities at the US Army Reserve Personnel Command (AR-PERSCOM) to rescind his discharge and assign him to the Retired Reserve.

4.  The applicant’s military records show that on 24 June 1996 he was informed by the AR-PERSCOM that as of 15 July 1995 he had attained the maximum years of authorized service for his grade.  At that time he was credited with 18 years, 0 months and 0 days of service for retired pay benefits at age 60.  Because he was credited with 18 or more but less than 20 years of qualifying Federal service for retired pay, he would not be removed from an active status prior to the date he was entitled to be credited with 20 years of qualifying service or prior to 15 July 1998, whichever was earlier.  At the same time, he was requested to make an election whether he desired to be discharged or transferred to the Retired Reserve when eligible.

5.  When the applicant did not respond to the retirement preference option, he was, in accordance with regulations, discharged since no member may be transferred to the Retired Reserve without their consent.  Thereafter, orders      D-07-036370 were published discharging him from the US Army Reserve effective 7 July 2000.

6.  The applicant was born on 12 February 1944, has completed 28 years of commissioned service and is a lieutenant colonel. 

7. United States Code (USC), title 10, §12731 authorizes retired pay for Reserve Component military service.  Under this law a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  

8.  USC 10, Chapter 54 provides that former members of the Reserve Components who are eligible to receive retired pay at age 60 but who have terminated their Reserve status are entitled to receive benefits under this chapter.

CONCLUSIONS:

1.  The applicant contends that he did not understand that he had to make an affirmative response to the AR-PERSCOM upon completing 20 years of qualifying Federal service.  Since transfer to the Retired Reserve can only be accomplished with the concurrence of the individual concerned, when his election was not forthcoming, he was discharged.

2.  Notwithstanding his discharge, he is still entitled to benefits under USC 10, Chapter 54.  However, the Board accepts that he may not have understood what was required of him since a Reservist usually goes through this process only once.  Therefore, it would be appropriate to revoke his discharge orders and transfer him to the Retired Reserve.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  revoking orders D-07-036370 discharging the applicant from the US Army Reserve; and

	b.  publishing orders showing that he was transferred to the Retired Reserve effective 7 July 2000.

2.  The Army has an established program to counsel retiring soldiers on the rights, benefits and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan.  The applicant is advised to contact his nearest RSO as soon as possible to facilitate a smooth transition to retired status.

BOARD VOTE:  

____slp_  _____rks    ____jpi__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		________Shirley L. Powell___________
		        CHAIRPERSON

INDEX

CASE ID	AR2000049075	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010322	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  136.00		
2.		
3.		
4.		
5.		
6.