IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20080005617 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, transfer to the retired reserve. 2. The applicant states that he was discharged upon his insistence several years after the Veterans Administration awarded him 100 percent disability. He continues, in effect, that he should have been transferred to the Retired Reserve. 3. The applicant provides a copy of Department of Veterans Affairs correspondence, dated 4 August 1999, certifying his service-connected permanent disability rating of 100 percent. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military service records show that he enlisted in the Regular Army on 1 November 1983. He was appointed as a commissioned officer in the Army National Guard to the rank of second lieutenant in the corps of engineers effective 1 September 1987. The highest rank he achieved was captain/pay grade O-3. 3. The Department of Veterans Affairs Board of Veterans’ Appeals determination, dated 19 February 1997, granted the applicant a service-connected disability for Lyme disease based on its review of the evidence and material of record in the applicant’s claims file. 4. Department of Veterans Affairs correspondence, dated 4 August 1999, certifies the applicant’s service-connected permanent disability rating of 100 percent. 5. The applicant’s web-based military personnel management transactions summary record shows that he requested unqualified resignation in response to a Selected Reserve solicitation and provided documentation showing 100-percent social security and veterans disability. 6. U.S. Army Reserve Personnel Command Orders D-07-226387, dated 2 July 2002, show that the applicant was honorably discharged effective 2 July 2002. 7. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes, in pertinent part, eligibility and procedures for transfer to the Retired Reserve. Eligible Soldiers must request transfer if they are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty regardless of the total years of service completed. The application must include the reason and authority for transfer to the Retired Reserve and a statement indicating applicable receipt of disability compensation, to include the amount and type of disability. DISCUSSION AND CONCLUSIONS: 1. The applicant’s request for transfer to the Retired Reserve was carefully considered and determined to have merit. 2. The applicant’s military service records show that he provided documentation substantiating his service-connected permanent disability rating of 100 percent. 3. There is no evidence which shows that the applicant was counseled regarding eligibility for transfer to the Retired Reserve. 4. It is reasonable to conclude that the applicant would have requested transfer to the Retired Reserve in accordance with the provisions of Army Regulation 140-10 if he had received proper counseling regarding his separation and discharge options. Therefore, he should be transferred to the Retired Reserve in lieu of discharge effective 2 July 2002. BOARD VOTE: ___X____ ___X___ ___X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records pertaining to the individual concerned be corrected by revoking his discharge orders and publishing orders transferring him to the Retired Reserve effective 2 July 2002. _______X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080005617 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080005617 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1