RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           9 March 2004                   
	DOCKET NUMBER:   AR2003091194

	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. Klaus P. Schumann		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Barbara J. Ellis		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, service credit and reinstatement of Reserve Component (RC) retirement points for the period 1997 through 2002.

2.  The applicant states, in effect, that he performed service after his transfer to 
the Retired Reserve, but assumed that personnel managers obtained the required waivers before authorizing his reinstatement into the Individual Ready Reserve (IRR) and subsequently assigning him to a Troop Program Unit (TPU) (4th Battalion, 104th Division).  He further states that he understands the misunderstanding, but performed his duties in good faith and should therefore be entitled to credit for this service.

3.  In support of his application, the applicant provides the following documents:  a self-authored statement, dated 14 May 2003; United States Army Reserve Personnel Command (ARPERSCOM) Orders C-01-701062, dated 9 January 1997; ARPERCOM Orders C-02-005808, dated 29 February 2000; ARPERSCOM Orders C-02-205106, dated 21 February 2002; ARPERSCOM Orders C-02-205106A01, dated 21 February 2002; ARPERCOM Orders C-02-005808R, dated 19 February 2002; RC Statement of retirement points, dated 
18 December 2001; Officer Evaluation Report (OER) for the period 1 January 2001 through 31 December 2001; OER for the period 29 February 2000 through 2 December 2000; Personnel Qualification Record (PQR), dated 26 February 2002; Statement of Verification of Duty Performance, dated 1 October 2002; third party statement from a military personnel specialist for the 351st Civil Affairs Command, dated 20 September 2002; third party statement from a chief warrant officer, dated 19 June 2002; Certificate of Retirement, dated 12 July 2002; and ARPERSCOM Orders P05-280692, dated 31 May 2002.  

CONSIDERATION OF EVIDENCE: 

1. The applicant's military personnel records were not available to the Board.  The case is being considered based on reconstructed records which consist primarily of the documents provided by the applicant, a Request for Personnel Action (DA Form 4187), dated 29 August 1997, an addendum to a DA Form 4187, dated 12 July 1997, Headquarters, United States Army Special Operations Command (USASOC) Orders 241-102, dated 29 August 1997, and an advisory opinion from ARPERSCOM personnel officials.  

2.  The last available RC retirement point history statement on file pertaining to the applicant is dated 18 December 2001.  This document shows that after his release from the regular Army (RA) on 24 May 1964, the applicant served continuously in the United States Army Reserve (USAR), with the exception of a 4 year 8 month period from 1967 to 1972, until his transfer to the Retired Reserve on 10 October 1996.  It further shows that his duty status changed from retired to USAR on 21 January 1997 and that he remained in that status until 
4 November 2001.

3.  In the processing of this case, an advisory opinion was obtained from the ARPERSCOM Transition and Separations Program Manager.  The opinion states, in effect, that the applicant was transferred to the Retired Reserve on 
9 October 1996, and received Reserve Special Separation Pay (RSSP) in conjunction with this action.  His transfer to the Retired Reserve was the result of his not being selected for retention by a United States Army Special Operations Command (USASOC) Selective Retention Board.

4.  The advisory opinion addressed the issue of retirement point credit by pointing out that Army Regulation 140-185, Chapter 1, limits the earning of retirement points to soldiers in the Ready Reserve or the active standby reserve. The advisory opinion further states that there are no regulatory provisions authorizing the earning of retirement points in a Retired Reserve status.

5.  The advisory opinion in this case further confirms that on 18 September 1997, the applicant was personally notified by ARPERSCOM personnel officials that soldiers in a Retired Reserve status were ineligible to earn service credit and retirement points. 

6.  The applicant's military records contain a DA Form 4187, dated 12 July 1997, which shows that as a result of his non-selection for retention in the selected reserve, the applicant elected to be transferred to the Retired Reserve with special separation pay.  An addendum to the DA Form 4187 shows that the applicant, based on his non-selection for retention, was counseled regarding his options to either be transferred to the Retired Reserve, discharged, or involuntarily reassigned to the USAR Control Group (Reinforced).  The applicant acknowledged that he understood his options and he voluntarily elected to be transferred to the Retired Reserve.

7.  The applicant's military records contain a copy of USASOC Orders 241-102, dated 29 August 1997, which reassigned the applicant to the Retired Reserve effective 9 October 1996.  These orders further show that the applicant was being reassigned based on his non-selection for retention by the 1997 USASOC Selective Retention Board and that he was eligible for special separation pay based upon his years of qualifying service.

8.  The ARPERSCOM advisory opinion points out that the applicant requested retirement point credit service performed between the effective date of his transfer to the Retired Reserve, 9 October 1996, and the date when his official orders transferring him to the Retired Reserve were actually published, 29 August 1997.  At this time, the applicant was given the option of accepting separation pay or changing the effective date of his transfer to the Retired Reserve and receiving retirement point credit.  The evidence shows that the applicant accepted separation pay and did not pursue service credit or retirement points. 

9.  A letter from ARPERSCOM personnel officials to a Member of Congress, dated 3 April 2002, indicates that the applicant, based on his successful appeal to the Secretary of the Army for selected reserve transition benefits, received separation pay in the amount of amount of $3,697.06 on 31 October 1997.  It also indicates that a proper Standard Installation Division Personnel System (SIDPERS) transaction to update the Reserve personnel database to show the applicant was transferred to the Retired Reserve was not submitted by the responsible personnel officials.  

11.  The applicant provides a PQR, which shows in Item 35 (Current and Previous Assignments) that his principal duty for the period 1 December 1994 through 3 January 1997 was as a Military Personnel Technician with the 351st Civil Affairs Command.  Additionally, the applicant provides two OERs, which show that he served as a Battalion S1 (Personnel/Administration Officer) for the period 29 February 2000 through 31 December 2001 with the 104th Division.  In this capacity the applicant's responsibilities included working with unit administrators "to supervise unit administrative and personnel operations, including payroll, personnel files administration, document and telephone control and unit mess operations."

12.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers.  Chapter 6 of the regulation governs the transfer to and from the Retired Reserve and states in pertinent part, that all Retired Reserve members who were removed from active status by board action or operation of law are ineligible for transfer to the Ready Reserve. 

13.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), in pertinent part, prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credit.  Chapter 1, in pertinent part, sets forth the basic eligibility requirements for earning retirement points and states that only Ready Reserve soldiers and active standby reserve soldiers are eligible to earn retirement point credit.  Retired Reserve soldiers are not identified as an eligible population for receiving retirement point credit.
14.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers.  Chapter 10 of the regulation governs the selective retention of officers in a TPU and states, in pertinent part, that selective retention boards will convene each year to consider all officers and warrant officers having completed 20 qualifying years of service in the USAR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant requested the option of transferring to the Retired Reserve with separation pay as a result of his
non-selection for retention by a USASOC Selective Retention Board.  

2.  The applicant contends that he performed his duty subsequent to his transfer to the Retired Reserve in good faith and as a non-personnel official he assumed that ARPERSCOM personnel officials had obtained the necessary waivers to allow him to drill with a unit subsequent to being assigned to the Retired Reserve.  However, the ARPERSCOM advisory opinion confirms that the applicant was personally informed by ARPERSCOM personnel officials that as a member of the Retired Reserve, he was ineligible to earn service credit and retirement points.  However, even after receiving this advise, he continued to drill and perform active duty, while knowingly in a Retired Reserve status.  Therefore, the evidence clearly does not support the applicant's contention that he performed this duty in good faith.  

3.  The evidence of record further shows that the applicant aggressively pursued Reserve Special Separation Pay through an appeal to the Secretary of the Army, and that he voluntarily accepted separation pay in conjunction with his transfer to the Retired Reserve knowing that he could no longer serve in an active Reserve status.  The failure of personnel officials to submit the necessary SIDPERS transactions to update the RC personnel database to show the applicant’s transfer to the Retired Reserve is noted.  However, this administrative error does not provide an evidentiary basis to support the applicant’s claim that he was not aware that he was ineligible to earn service credit and retirement points subsequent to his transfer to the Retired Reserve.  

4.  The evidence of record further confirms that while not holding a primary specialty as a personnel officer, the applicant did have extensive practical experience in the personnel and unit administration field, as evidenced by the fact that he performed duties as a Military Personnel Technician for approximately 5 years during his service in the USAR.  As evidenced by the OERs provided, during at least 21 months of this time, his duties included unit administration, personnel operations and personnel files administration.  

5.  Further, based on the application submitted, it is clear the applicant has a propensity and ability to research and comprehend personnel related regulatory guidance.  Therefore, it is reasonable to presume that the applicant was or should have been aware that he was ineligible to serve in the active Reserve and earn retirement points subsequent to his transfer to the Retired Reserve. 

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 clearly satisfy this requirement.  Therefore, granting the applicant retirement point credit and canceling his debt is inappropriate in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SAC_  __SLP__  __BE__    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Samuel A. Crumpler
		  CHAIRPERSON

INDEX

CASE ID	AR2003091194	
SUFFIX		
RECON		
DATE BOARDED	2004/03/09	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.RetPnts	135.0200.0000	
2.		
3.		
4.		
5.		
6.