PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           9 August 2001
	DOCKET NUMBER:   AR2001051489

	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. William W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Gail J. Wire		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 his status be changed from discharged to Retired Reserve.  

3.  The applicant states that he was discharged on 17 October 1997, but he has 20 qualifying years and is eligible for the Retired Reserve.  He identifies 
14 December 2000 as the date of discovery and relates that his orders indicated that he had been discharged but he did not know that he had to be in the Retired Reserve in order to be eligible for benefits.

4.  The applicant’s military records show that following enlisted service in the Army National Guard he was appointed an officer.  He progressed normally until he was twice non-selected for promotion to major.  On 4 August 1994 he requested separation from the Alaska Army National Guard because he was pending mandatory separation due to this non-selection.  On 10 April 1995 the Alaska Army National Guard amended the applicant’s separation order to show that he had been transferred to the USAR Control Group (Reinforcement) rather than the Retired Control Group.  A 10 May 1995 letter from the Commander, Army Reserve Personnel Center (ARPERCEN) notified the applicant that he had been promoted to major with a date of rank of 10 May 1994.  On 17 October 1997 the ARPERCEN discharged the applicant.  The separation order states “…you no longer have any military status.…” 

5.  The applicant’s OMPF contains no indication that he was advised of his right to elect transfer to the Retired Reserve or discharge or that he ever made any such election.

6.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

CONCLUSIONS:

1.  The applicant’s current status will have no effect upon his eligibility for pay and benefits at age 60.  However, had he been transferred to the Retired Reserve he would be eligible for those benefits associated with what is popularly termed “Gray Area” retirement.”  

2.  The alleged error or injustice was, or with reasonable diligence should have been discovered on 17 October 1997, the date of the discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 
17 October 2000.

3.  However, in the absence of evidence that the applicant was advised of his right to elect discharge or transfer to the Retired Reserve or that he exercised that right and elected discharge it is unjust to deprive him of those Gray Area benefits.  Therefore, it is in the interest of justice to waive the failure to timely file and to grant the requested relief.

4.  In view of the foregoing findings and conclusions, correcting the applicant's records as recommended below would rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by revoking the 17 October 1997 honorable discharge currently held by the individual concerned and by showing that he was transferred to the USAR Control Group (Retired) on that same date.

BOARD VOTE:  

__INW___  __FNE__  __GJW__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   _Irene N. Weelwright___
		        CHAIRPERSON

INDEX

CASE ID	AR2001051489	
SUFFIX		
RECON		
DATE BOARDED	20010809	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	136.01	
2.	142.00	
3.		
4.		
5.		
6.