MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 August 2002
	DOCKET NUMBER:   AR2002072547

	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:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 from the United States Army Reserve (USAR) be voided and that he instead be transferred to the Retired Reserve.

APPLICANT STATES:  In effect, that he completed 20 years of service in June 1998 and decided that because of his involvement in community service and a new job, and the fact that he was moving, it was time to allow someone else the opportunity to be the first sergeant of a unit that had such a geographical displacement, management of it’s soldiers was a time consuming endeavor.  Therefore, he requested transfer to the Individual Ready Reserve (IRR).  He goes on to state that his unit administrator informed him that if he selected transfer to the Retired Reserve, he would not be allowed to reenter at a later date.  He continues by stating that this information turns out to be incorrect and as a result, he made his decision based on incorrect information, a decision that may affect his retirement plans and bring hardship on his family.  

EVIDENCE OF RECORD:  The applicant's military records, though somewhat incomplete, show:

He enlisted in the Regular Army on 6 June 1978 for a period of 3 years.  He served until he was honorably released from active duty (REFRAD) on 5 June 1981.  He was transferred to the USAR Control Group (Reinforcement) and subsequently was transferred to a troop program unit, where he remained through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 on 3 October 1994.

The last evaluation report contained in his Official Military Personnel File has an ending date of June 1998 and indicates that the applicant was leaving the unit.  

On 12 January 2000, the Army Reserve Personnel Command (ARPERSCOM published order discharging the applicant from the USAR Control Group (Reinforcement), due to the expiration of his term of service (ETS).

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 (enclosed), 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.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve component soldiers.  It provides, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service and served the last 8 years of his or her qualifying service as a Reserve component soldier.  Soldiers who have received a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) may make application for Retired pay 6 months prior to reaching age 60. 

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.  The applicant’s honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application,or the evidence of record.  The applicant’s discharge orders were published in January 2000 and there is no indication in the available records to show that the applicant took steps to either extend his enlistment or to reenlist prior to his ETS.  

3.  The Board also notes that during the period he was assigned to the Control Group, he had the option of requesting transfer to the Active or Retired Control Group, there is no evidence that he made any such attempt.  Inasmuch as he no longer had a contract and did not make his desires to remain affiliated with the USAR known, the ARPERSCOM had no option but to discharge him.

4.  The applicant’s contention that he received incorrect information also appears to be without merit.  A discharge from the USAR does not necessarily preclude subsequent enlistment in a Reserve Component if the individual is otherwise qualified and the needs of the service dictate.

5.  Although his discharge will have no effect on his right to apply for Retired Pay at age 60 or his entitlement to benefits, his failure to elect transfer to the Retired Reserve vice discharge has allowed him to not be subject to recall since his discharge.  

6.  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.

7.  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

___inw___  __jm ___  __js ____  DENY APPLICATION

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

INDEX

CASE ID	AR2002071547	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/01/12	
DISCHARGE AUTHORITY	AR135-178	
DISCHARGE REASON	ETS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  333	135.0100/TRAN RET USAR	
2.		
3.		
4.		
5.		
6.