PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 October 2001                   
	DOCKET NUMBER:   AR2001061102

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		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 orders be revoked and he be placed in the Retired Reserve with all its attendant benefits, to include but not limited to the Survivor Benefit Plan (SBP).

3.  The applicant states that he received his 20-year letter in August 2000.  In November 2000, he requested transfer to the Retired Reserve.  Due to an administrative error he was honorably discharged instead.  Due to false information he did not enroll in the SBP.  Supporting evidence is as listed on the DD Form 149.

4.  The applicant's military records show that he was born on 29 November 1960. After having had prior service, he enlisted in the Regular Army in July 1981.  He was released from active duty in September 1992 under the Enlisted Voluntary Early Transition Program and transferred to the U. S. Army Reserve (USAR).  On 8 July 1995, he reenlisted in the USAR in a Troop Program Unit for 6 years making his expiration term of service (ETS) 7 July 2001.  

5.  The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 31 August 2000.  Paragraph 4 states in part “…By law, you have only 90 calendar days from the date you receive this memo to submit your DD Form 1883, Survivor Benefit Plan-Election Certificate.  If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60…”

6.  On 14 April 2001, the applicant completed and signed a Request for Reserve Component Assignment or Attachment, DA Form 4651-R, requesting transfer to the Individual Ready Reserve (IRR).  Assignment orders assigning him to the IRR are not available.

7.  Orders 184-019L, Headquarters, 81st Regional Support Command dated        3 July 2001 discharged the applicant from the USAR effective 7 July 2001, his ETS.

8.  Army Regulation 140-10 prescribes policies to assign, remove, or transfer USAR soldiers.  In pertinent part, it states that soldiers are authorized assignment to the Retired Reserve under several circumstances, including when the soldier is entitled to receive retired pay.  Eligible soldiers must request transfer.

9.  Army Regulation 135-178 establishes policies governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the USAR.  In pertinent part it states that upon ETS, the soldier will be discharged by the separation authority.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The evidence provided by the applicant shows that he requested transfer to the IRR, not the Retired Reserve.  This request may not have been acted upon as he was less than 3 months away from his ETS of 7 July 2001.   His ETS came up, there is no evidence to show he extended or attempted to extend his enlistment, and by regulation he was required to be discharged.

2.  However, the Board notes that the applicant will not be eligible for retired pay for another 18 or 19 years.  It would be in the Government’s interest to transfer him to the Retired Reserve where he could be a mobilization asset for a reasonable length of time to come.

3.  The applicant provides no evidence to show that he was given “false information” concerning SBP enrollment.  His 20-year letter was very clear in stating he had 90 days from receipt of the letter to make his SBP election or else wait until he applied for retired pay at age 60.

4.  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 184-019L, Headquarters, 81st Regional Support Command dated 3 July 2001 discharging the applicant from the USAR effective  7 July 2001, and
     b.  publishing orders assigning the applicant to the Retired Reserve effective  7 July 2001.
2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rvo___  __rks___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061102	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.	137.04	
3.		
4.		
5.		
6.