IN THE CASE OF: BOARD DATE: 18 June 2009 DOCKET NUMBER: AR20090001419 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, that his 17 April 1998 discharge from the United States Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve on that same date in lieu of being discharged. He also requests credit of 50 retirement points per year from the date of discharge from the USAR Control Group on 20 April 1998 to the date of transfer to Retired Reserve status. 2. The applicant states that he was honorably separated from the Virginia Army National Guard (VAARNG) on 1 June 1996 and received his Notification of Eligibility for Retired Pay (20-year letter). He was subsequently transferred to the USAR Control Group (Individual Ready Reserve (IRR)) and was discharged from the USAR on 20 April 1998. However, he was not previously notified that he would be discharged and not transferred to the Retired Reserve. He did not realize that he was not in the Retired Reserve until July 2008 when he applied for a retired identification card at Fort Lee, VA, and was informed at the time that his status was "Discharged" instead of "Retired Reserve. 3. The applicant provides a copy of his National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service), dated 1 June 1996 and 15 December 1980; a copy of his NGB Form 23 (Army National Guard Retirement Credit Record); a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 26 August 1973; a copy of his NGB Form 23D (Army National Guard Current Annual Statement), dated 31 July 1996; a copy of his 20-year letter, dated 11 December 1995; a copy of his DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 16 February 1996; a copy of his Honorable Discharge Certificate, dated 20 April 1998; and a copy of Orders 119-074, issued by the Office of the Adjutant General, VAARNG, on 20 June 1996, in support of his application. 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 records show he was born on 20 July 1949 and was inducted into the Army of the United States on 16 November 1971. He held an infantry military occupational specialty, attained the rank/grade of private first class (PFC)/E-3, and was honorably released from active duty and transferred to the USAR Control Group (Annual Training) on 26 August 1973. He completed 1 year, 9 months, and 11 days of creditable active military service. 3. The applicant’s records also show he enlisted in the VAARNG on 29 April 1977. He held MOS 76P (Flight Operations Coordinator), attained the rank/grade of specialist five (SP5)/E-5 and was honorably discharged on 15 December 1980 for the purpose of accepting a commission/warrant officer appointment. 4. On 16 December 1980, the applicant was appointed as a warrant officer one (WO1) in the VAARNG and executed an oath of office on the same date. He completed various aviation/aircraft training courses, served in various positions, and was promoted to chief warrant officer two (CW2) on 12 January 1984. 5. On 11 December 1995, the Office of the Adjutant General, Department of Military Affairs, VAARNG, Richmond, VA, issued the applicant his 20-Year Letter. This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. The ARNG Annual Statement he was issued shows he completed 20 years, 6 months, and 16 days of qualifying service for non-regular retirement. 6. On 20 June 1996, the Office of the Adjutant General, VAARNG, published Orders 119-074 honorably releasing the applicant from the VAARNG and transferring him to the USAR Control Group (IRR), as a result of his resignation, effective 1 June 1996. 7. On 17 April 1998, the U.S. Army Human Resources Command (HRC), St. Louis, MO, published Orders D-04-827168, honorably discharging the applicant from the USAR, effective 20 April 1998, in accordance with Army Regulation 135-175 (Separation of Officers). 8. The applicant's records do not reveal that he submitted a Request for Reserve Component Assignment/Attachment (DA Form 4651-R) requesting retirement or to be transferred to the Retired Reserve. 9. The applicant's ARPC-E (Chronological Statement for Retirement Points), dated 9 June 2009, shows that during the period he was in the USAR Control Group (IRR) (from July 1996 to April 1998) the applicant was a non-participant and he did not earn the minimum 50 points per year required for credit as a qualifying year for non-regular retirement. 10. The applicant turns 60 years of age on 20 July 2009. 11. In an advisory opinion obtained from the HRC-St. Louis Transition and Separation Branch a human resource specialist stated that the applicant's discharge orders are valid and should not be revoked. The applicant was notified that he had completed his retirement year ending (RYE) November 2007, but he had not maintained an active status by earning 50 points or more for the RYE; therefore, the applicant was considered a non-participant. He was provided a notification and option letter explaining this and also explaining his options regarding this matter; however, no reply was received from him and he was accordingly discharged in accordance with Army Regulation 155-175. 12. The applicant was provided with a copy of this advisory opinion. He submitted a rebuttal on 3 June 2009. In his rebuttal, the applicant states, in effect, that when he was separated from the VAARNG on 1 June 1996, he was transferred to the USAR Control Group (IRR) which he did not request. He was then discharged from the USAR Control Group (IRR) on 20 April 1998 and received an Honorable Discharge Certificate; however, he did not receive his discharge orders. He assumed that he had been transferred to the Retired Reserve since his 20-year letter had been on file for over two years. Officials at the USAR Control Group had his records and should have known that he should have been transferred to the Retired Reserve. He adds that he believes a mistake must have occurred. He also feels that the official who provided the advisory opinion must have made a mistake since he does not understand how the official's findings apply to him. He concludes that he served his country honorably for over 20 years and should have his 20 April 1998 discharge orders amended to show he was transferred to the USAR Control Group (Retired Reserve). 13. Army Regulation 135-178 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. It states, in pertinent part, that the provisions of law stated in this regulation pertain to the separation of Reserve component officers. These provisions are sections of Title 10, U.S Code (USC), except where otherwise provided. At the time, section 3352(b) provided that an officer of the Army National Guard of the United States (ARNGUS), on withdrawal of Federal recognition, becomes a member of the Army Reserve unless he is discharged from his appointment as a Reserve of the Army. 14. Paragraph 4-4 of Army Regulation 135-178 provides for removal of an officer from an active status. Active status means the status of an ARNGUS or U.S. Army Reserve commissioned officer, other than a commissioned warrant officer, who is not in the inactive Army National Guard, in the Standby Reserve (Inactive List), or in the Retired Reserve. It states, in pertinent part, that members of the Army Reserve will be removed from an active status for failure to apply for transfer to the Retired Reserve on removal from active status. An officer who is removed from active status for any reason listed in this paragraph will be discharged if he is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date he is advised that he is being removed from active status, with or without the officer’s consent regardless of the length of service. Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive). 15. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Chapter 7 contains guidance on removal from active status and paragraph 7-1a indicates that Soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible. 16. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) provides policy for the granting of retired pay to Soldiers and former Reserve Component Soldiers. It states, in pertinent part, that pay is granted after completion of 20 or more years of qualifying service and upon attainment of age 60. It states that each qualified individual is responsible to submit an application for retired pay (DD Form 108 [Application for Retired Pay Benefits]) prior to age 60 and that those without a current military status may obtain the form from a local Reserve Component unit or by writing to HRC-St. Louis. 17. Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge orders should be revoked and he should be transferred to the Retired Reserve and that he should be granted 50 retirement points for each year from the date he was discharged from the USAR until the date he was transferred to the Retired Reserve. 2. With respect to the applicant's issue of voiding his 17 April 1998 discharge from the USAR and transferring him to the Retired Reserve, the evidence of record shows that the applicant was a non-participant during his period of service in the IRR. As the advisory opinion indicates, he was notified but failed to respond. There is no evidence in the available records and the applicant did not provide substantiating evidence that shows he elected to transfer to the Retired Reserve or that he was not counseled properly regarding his options. 3. With respect to the applicant's contention that he should be awarded 50 retirement points for each year from the date he was discharged from the USAR until the date he was transferred to the Retired Reserve, there is no evidence that the applicant earned 50 points for each year. There is no provision in the applicable Army Regulation to award retirement points for service that has not been performed. 4. With respect to retired pay, in order to qualify for retired pay at age 60, the applicant must show he served the minimum number of years required to be eligible for retired pay. The applicant will turn 60 on 20 July 2009 and may submit a request to HRC-St. Louis for retired pay at this time if he is otherwise qualified. 5. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence to grant him the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ____X___ ____X__ 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. _______ _ 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) AR20090001419 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001419 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1