MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 June 2002
	DOCKET NUMBER:   AR2002069110

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Donald P. Hupman		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal 	hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge orders be voided and that he be reinstated to the United States Army Reserve (USAR) Control Group (Individual Ready Reserve).

APPLICANT STATES:  That he received his 20-year letter in 1994 and started submitting the paperwork; however, before he could finish, he had already been separated.  He goes on to state that this did not present a problem until 11 September 2001, when he contacted officials at the Army Reserve Personnel Command (ARPERSCOM) to have his name put on the volunteer list and was informed that he was fully retired.  He further states that this was never his intent from the onset and that he would like to be able to assist wherever his nation needs him.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant served in the United States Marine Corps for a period of 9 years, 7 months and 21 days.  He was honorably discharged in the pay grade of E-6 on 7 September 1977.

On 19 January 1980, he was commissioned as a USAR second lieutenant and remained in the USAR.  He was promoted to the rank of major on 14 March 1992.  His Retirement Year Ending (RYE) month was January of every year.

In October 1994, the ARPERSCOM sent the applicant a notification letter informing him that he had not earned enough points to be credited for a creditable year of service for retirement in RYE January 1995.  He was informed that he was required to be discharged or transferred to the Retired Reserve, if he so requested.  He was given a 30-day suspense in which to make an election on the option form provided and he failed to do so.

On 29 August 1995, orders were published by the ARPERSCOM discharging him from the USAR effective the same date.

Army Regulation 135-175 provides the criteria for removing USAR members from an active status.  It provides, in pertinent part, that an officer who is removed from active status will be discharged from the USAR unless he or she applies for transfer to the Retired Reserve or Inactive Reserve within 30 days of notification advising them that they are required to be removed from an active USAR Status.

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of that regulation relates to the removal of soldiers from 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. 

Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

Due to recent Departmental changes, certain benefits, such as commissary and post exchange privileges, accrue to Reservists with more than 20 years of qualifying service for retirement at age 60 and who have terminated their Reserve status.  Such personnel are required to present their 20-year letter at the nearest military identification (ID) card issuing facility to obtain their “Gray Area” benefits.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  While the Board commends the applicant for his desire to continue to contribute to the defense of the nation, that in itself is not a basis to void a properly effected discharge.  The applicant was given more than sufficient time to respond to the notification informing him of his options and failed to do so.  Accordingly, he was properly discharged from the USAR. 

3.  Because entitlement laws have changed, the applicant is now eligible for “Gray Area” benefits from a discharged status and his retired pay will not be jeopardized by his status, there is no basis to void a duly constituted discharge order. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___dh___  ___cla___  __be____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002069110	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1995/08/29	
DISCHARGE AUTHORITY	AR135-175	
DISCHARGE REASON	UNSAT PART	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  335	135.0300/CHG STATUS	
2.		
3.		
4.		
5.		
6.