PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  27 August 2002
	DOCKET NUMBER:  AR2002068781

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Arthur A. Omartian		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 US Army Reserve Personnel Command (AR-PERSCOM) ARPC-PSP-T Orders D-09-965183, dated 15 September 1999, be revoked and that he be transferred to the Retired Reserve.

3.  The applicant states that separation orders were erroneously issued when a request was prepared for transfer to the Retired Reserve.  In support of his application, he submits copies of: ARPC FL 3948 (Nonparticipation in the USAR); reverse side of ARPC FL 3948 (Election of Options), dated 15 July 1999; 
AR-PERSCOM ARPC-PSP-T Orders D-09-965183, dated 15 September 1999; Oregon Military Department Orders 13-4, dated 13 January 1998; and a copy of NGB Form 22 (Report of Separation and Record of Service).

4.  The applicant’s military records show he was commissioned as a second lieutenant in the Oregon Army National Guard (ORARNG) on 25 March 1967.

5.  On 19 March 1990, the National Guard Bureau notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant’s age at 60 (20-Year Letter). 

6.  The applicant provided a copy of Oregon Military Department Orders 13-4, dated 13 January 1998, which shows that the applicant was separated from the ORARNG, effective 31 January 1998, and was transferred to the USAR Control Group (Standby Inactive).

7.  The applicant provided a copy of his Summary of Retirement Points, which shows he had completed 31 years of qualifying service for retirement purposes.

8.  On 29 June 1999, the AR-PERSCOM forwarded a letter to the applicant, Subject:  Nonparticipation in the US Army Reserve.  This letter stated that the applicant was warned of his nonparticipation in the USAR, that he must earn 
50 retirement points per year or be discharged or transferred to the Retired Reserve, and that he could apply for a one-time waiver.  This letter had a suspense of 3 August 2000.

9.  The applicant provided a copy of the reverse side of ARPC FL 3948 (Election of Options), dated 15 July 1999, which shows that he had elected transfer to the Retired Reserve.

10.  The applicant’s provided a copy of AR-PERSCOM Orders D-09-965183, dated 15 September 1999, which shows that the applicant was honorably discharged from the USAR Control Group (Reinforcement) effective 1 October 1999.  There is no record of this form being received at AR-PERSCOM.

11.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  Paragraph
7-3(1) states that an officer (other than a commissioned warrant officer) or enlisted soldier who has accrued 20 years of qualifying for retired pay must earn a minimum of 50 points annually to be retained in an active status in the USAR.  Officer (other than commissioned warrant officers) or enlisted soldiers who do not earn 50 points by their retirement year ending (RYE) dates will be removed from an active status.

12.  Army Regulation 135-180 also states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve Component soldier within 1 year after they complete 20 years of qualifying service for retirement.  This letter will be issued by the Chief, National Guard Bureau for ARNG soldiers, and the Commander,
Army Reserve Personnel Command (AR-PERSCOM) for USAR soldiers.  The letter, once issued, may not be withdrawn or revoked.  The soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the
applicant’s discharge was accomplished in accordance with law and regulations applicable at the time.  However, it is apparent that the applicant was qualified for transfer to the Retired Reserve as indicated by the issuance of a 20-Year Letter and it appears he requested that option in July 1999.  

2.  The Board notes that the applicant was given the opportunity to request transfer to the Retired Reserve by receipt of his ARPC FL 3948 (Nonparticipation in the US Army Reserve) letter, dated 29 June 1999, with a suspense date of 3 August 1999.  The Board also notes that the applicant completed his ARPC FL 3948 (Election of Options), which is dated 15 July 1999.  The Board further notes that if his ARPC FL 3948 had been received by the suspense date, that orders should have been published transferring him to the Retired Reserve.

3.  Inasmuch as the applicant meets eligibility requirements for assignment to the
Retired Reserve, it would be equitable and just to correct his military records by revoking his discharge of 1 October 1999, and assigning him to the Retired Reserve effective the same date.

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 for the individual concerned be corrected:

a.  by voiding the 1 October 1999 discharge from the USAR; and

b.  by showing that he was transferred to the Retired Reserve effective 1 October 1999.

BOARD VOTE:  

__iw___  ___tl___  ___ao___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Irene N. Wheelwright____
		        CHAIRPERSON

INDEX

CASE ID	AR2002068781	
SUFFIX		
RECON		
DATE BOARDED	20020827	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19991001	
DISCHARGE AUTHORITY	AR  135-175	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  333		
2.		
3.		
4.		
5.		
6.