PROCEEDINGS

	IN THE CASE OF:      .

	BOARD DATE:            10 June 2003                  
	DOCKET NUMBER:    AR2003086241

	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. Samuel A. Crumpler  		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John T. Meixell		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 instead be transferred to the Retired Reserve.

3.  The applicant states, in effect, that he did not return his selection form, but transfer to the Retired Reserve was his intent.  He claims that he wanted to receive his “20 Year Letter” and also to be available for call-up in an emergency. He also states that he wanted to protect his family’s benefits.  He claims that his failure to return the option election form was an oversight, and he was unaware that not returning the form would result in his discharge.  He claims that he believed that he had been retired and did not realize that he had been in fact discharged until he reviewed his records in 1994.  

4.  The applicant’s military records show that on 5 June 1965, he was commissioned a second lieutenant (2LT) in the USAR.  He completed over 20 years of qualifying service for retired pay prior to being discharged from the USAR in the rank and pay grade of lieutenant colonel/0-5 (LTC/0-5) on 9 August 1993.  

5.  The specific facts and circumstances pertaining to the applicant’s discharge processing are not on file.  However, a Reserve Personnel Accounting System (RPAS) statement obtained from the Army Reserve Personnel Command (ARPERSCOM) verifies that the applicant was issued a “20 Year Letter” on 
21 January 1991, which confirmed he had completed the required years of service necessary to qualify for retired pay at age 60.  This document also confirms that on 9 August 1993, he was involuntarily discharged from the USAR based on his having reached his maximum authorized years of service.  The RPAS statement also confirms that at the time of his discharge, he had completed 22 years of creditable service for Reserve retirement.  

6.  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.  Lacking evidence to the contrary, the Board presumes that the applicant’s  honorable discharge from the USAR was accomplished in accordance with the applicable law and regulation in effect at the time.  
2.  However, the Board also finds it reasonable to conclude that if the applicant had properly understood that he was not being transferred to the Retired Reserve and that his discharge would be automatic if he failed to return his option election form, he would have responded in a timely manner.  Further, the Board has no reason to doubt the applicant’s claim that it was always his intent to transfer to the Retired Reserve upon his mandatory removal from an active USAR status.  

3.  The Board takes special note of the fact that the applicant’s USAR discharge was based on something other than medical unfitness, and 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.  Thus, the Board finds it reasonable and appropriate to grant the requested relief as a matter of equity in the best interest of the applicant and the Army.  

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 9 August 1993 discharge from the USAR pertaining to the individual concerned, and by showing that he was instead transferred to the Retired Reserve on that same date.  

BOARD VOTE:  

__JM__  __SLP___  __SAC_  GRANT AS STATED IN RECOMMENDATION

________  ________  ______ GRANT FORMAL HEARING

________  ________  _______DENY APPLICATION

		 Samuel A. Crumpler 
		 CHAIRPERSON

INDEX

CASE ID	AR2003086241	
SUFFIX		
RECON		
DATE BOARDED	2003/06/DD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/08/09	
DISCHARGE AUTHORITY	AR 135-155	
DISCHARGE REASON	Max Yrs of Svc	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  338	136.0000	
2.		
3.		
4.		
5.		
6.