PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 April 2001
	DOCKET NUMBER:   AR2001052236

	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. John H. Kern		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 he served in both an enlisted and warrant officer status with the Army National Guard (ARNG) and after his discharge from the ARNG and transfer to the USAR he was appointed a captain (CPT) in the Medical Corps (MC).  He claims he now has found out that he was discharged from the USAR into a civilian status and was not transferred to the Retired Reserve and wishes that this be corrected.  He indicates that he has over 
20 years of service for non-regular retirement and received his letter of notification of eligibility for retired pay at age 60 (20 Year Letter) in 1987 and should be appropriately transferred to the Retired Reserve.  

4.  The applicant’s military records show that on 21 August 1987, he was issued a 20 Year Letter, which certified that he had completed the required years of service to be eligible for retired pay at age 60.

5.  On 31 March 1992, the applicant was honorably discharged from the Army National Guard (ARNG) and transferred to the USAR Control Group Reinforcement, St Louis, Missouri.  At the time of his discharge from the ARNG, the applicant held the rank and pay grade of chief warrant officer four/W-4 
(CW4/W-4) and had completed a total of 27 years, 9 months, and 16 days of service for pay.

6.  On 12 October 1992, the applicant accepted a USAR appointment and commission as a CPT in the MC and remained assigned to the USAR Control Group (Reinforcement), as codified in Orders Number C-10-236833, dated 
13 October 1992, issued by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri.

7.  On  3 July 1995, the applicant was honorably discharged from the USAR via Orders Number D-07-554051, issued by the USAR Personnel Center (ARPERSCEN).  At the time of his discharge he held the rank and pay grade of CPT/0-3. 

8.  Army Regulation 135-175 (Separation of Officers) prescribes the policies and procedures for the separation of USAR officers.  Chapter 4 contains criteria for discharge and 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 USAR will be removed from an active status for any of 18 listed reasons.  It also indicates that removal will be by discharge; however, it does provide the option for eligible members to apply for transfer to the Retired Reserve in lieu of discharge.  
CONCLUSIONS:

1.  The record provides no specific reason for the applicant’s discharge from the USAR.  Lacking evidence to the contrary, the Board presumes 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.  This presumption would be true regardless of the reason for his discharge and the Board finds no apparent reason why he would not have chosen that option had he been given the opportunity at the time. 

3.  If the applicant’s USAR discharge was based on something other than medical unfitness, 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.  Therefore, the Board finds it reasonable, as a matter of equity, to provide the requested relief. 

4.  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 3 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.

BOARD VOTE:  

___mm __  ___jhk __  ___mvt__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John H. Kern______
		        CHAIRPERSON

INDEX

CASE ID	AR2001052236	
SUFFIX		
RECON		
DATE BOARDED	2001/04/17	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1995/07/03	
DISCHARGE AUTHORITY	AR 135-100	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  37	106.0000	
2.		
3.		
4.		
5.		
6.