PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            22 February 2001
	DOCKET NUMBER:   AR2000049479

	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. Ted S. Kanamine		Member	
	Mr. Stanley Kelley		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 be transferred to the USAR Retired Reserve.   

3.  The applicant states, in effect, that in August 1992 he was notified by his commander that he had not passed his over 40 screening physical and that he would be released from the USAR not later than 30 September 1992.  Given he had already completed the necessary qualifying years for retired pay and had been issued a 20 Year Letter from the United States Army Reserve Personnel Command (ARPERSCOM) he assumed he would be automatically transferred into the Retired Reserve. 

4.  The applicant also claims that he only discovered later, in August 2000, that his status was listed as discharged instead of retired when he contacted ARPERSCOM to find out what he and his wife had to do to obtain military identification (ID) cards.  He was told during this conversation that he had been discharged and not transferred to the Retired Reserve.  

5.  The applicant’s military records show that on 14 November 1991, he was issued a 20 Year Letter from ARPERSCOM, which certified that he had completed the required years of service to be eligible for retired pay at age 60 and that he was discharged from the USAR on 17 July 1995, in the rank and pay grade of major/0-4.  

6.  On 17 July 1995, Orders Number D-07-558565 was published by ARPERSCOM, which directed the applicant’s honorable discharge from the USAR, under the provisions of Army Regulation 135-175, effective the date of the order.  

7.  The applicant provided a copy of a Chronological Statement of Retirement Points (ARPC Form 249-2-E), dated 10 February 2000, issued by ARPERSCOM. This document verifies that, as of that date he had completed 23 years of qualifying service for retirement.  

8.  The ARPC Form 249-2-E also indicates that the applicant had accrued a total of 2065 creditable points and the last period for which he was granted a qualifying period for retirement was from February 1993 to February 1994.  In addition, it confirms that he was awarded 15 points for the years 1995 and 
1996, but these points did not translate into qualifying periods for retirement.  

9.  Army Regulation 135-175 (Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  Chapter 4 contains criteria for discharge.  Paragraph 4-4 provides guidance and the reasons that mandate the removal of a member of the USAR from an active status.  It states in pertinent part, that members of the Army Reserve will be removed from an active status for any of 18 listed reasons, with or without the officer's consent.  It also indicates that removal will be by discharge; however, it does provide the option for members who are eligible and apply to be transferred to the Retired Reserve in lieu of discharge.  

CONCLUSIONS:

1.  The available records and evidence does not provide the specific reason for the applicant’s discharge from the USAR.  Lacking evidence to the contrary, the Board must presume that his honorable discharge from the USAR was accomplished in accordance with applicable law and regulation at the time.

2.  However, given the applicant’s contentions, the Board also finds it reasonable to conclude that if he had been properly advised of the regulatory option to request transfer to the Retired Reserve, in lieu of discharge, he would have likely elected that option at the time.  

3.  This presumption is true, regardless of the reason for the applicant’s discharge.  If his discharge was in fact based on his being found medically unfit, as is his claim, he would have been able to request transfer to the Retired Reserve with no threat of recall.  Thus, the Board finds no apparent reason why he would not have chosen that option had he been aware of it at the time.

4.  If the applicant’s USAR discharge was based on something other than medical unfitness, for example his nonparticipation based on not earning sufficient participation points annually, his electing transfer to the Retired Reserve would likely subject him to recall while only providing him benefits to which he is already entitled based on his years of qualifying service for retirement.  

5.  Therefore, the Board finds it reasonable, as a matter of equity, to provide the requested relief and that it would be appropriate to transfer the applicant to the Retired Reserve, in lieu of the USAR discharge he now holds. 

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 17 July 1995 discharge from the USAR of the individual concerned; and by showing that he was transferred to the Retired Reserve effective that same date, 17 July 1995. 

BOARD VOTE:  

___tsk___  __sk____  ___rvo __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR2000049479	
SUFFIX		
RECON		
DATE BOARDED	2001/02/22	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1995/07/14	
DISCHARGE AUTHORITY	AR 135-175	
DISCHARGE REASON	Discharge (unk)	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  37	106.0000	
2.		
3.		
4.		
5.		
6.