PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  20 April 2000
	DOCKET NUMBER:   AR1999030452

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Roger W. Able		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 that his discharge be revoked and he be reassigned to the Retired Reserve.

3.  The applicant states that he received his 20 year letter (eligibility for retired pay at age 60) and waited for the expiration of his enlistment (ETS).  He requested and received a pink ID card in order to use base facilities.  He was never briefed on his options on ETS.  He was never informed that he had been discharged and assumed that everything was taken carte of.  When he tried to renew his ID card it was refused because the system showed him in a discharged status.

4.  The applicant’s military records show that he enlisted in grade E-7 for 3 years in the USAR on 17 June 1988 with over 20 years prior Marine Corps, ARNG, and USAR service.  He was issued a 20 year letter on 12 May 1990, informing him that he was eligible for retired pay at age 60, Survivor Benefit Plan enrollment, and possible participation in a group life insurance program.  He continued to serve in the USAR and on 5 May 1991 extended his enlistment for 1 year.  His established ETS was now 16 June 1992, which he acknowledged with his signature.

5.  On 18 January 1992 the applicant requested to be excused from annual training starting on 30 May 1992 because of personal and community hardship and because he was scheduled to ETS on 16 June 1992.  He further stated that he planned to retire upon his ETS.  On 18 February 1992 the request was approved.  There is no documentation in the available record or submitted by him to show that he ever submitted a request for voluntary retirement prior to his ETS.

6.  On 25 June 1992 the unit submitted a request that the applicant be discharged since he had already reached his ETS on 16 June 1992.  The request for assignment states that the applicant was not available for signature.  Effective 29 July 1992 the applicant was honorably discharged in grade E-7 under authority of AR 135-178 by reason of ETS.  The discharge was mailed to the address listed on his DA Form 2A (qualification record) which he had verified on 16 November 1991.  His statement of retirement points shows that he had 24 years, 11 months, and 29 days creditable service qualifying for retirement at age 60.

7.  Army Regulation 135-178 provides for the separation of enlisted soldiers.  Chapter 11 states that the separation authority, on ETS, will discharge the soldier.  It also states that a soldier will not be kept past his ETS without his consent or under other operation of law.

8.  Army Regulation 135-180 provides the 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 for submitting an application for retired pay (DD Form 108) 6 months 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 AR-PERSCOM.

9.  Army Regulation 140-10 prescribes the policy and procedures for transfer to the Retired Reserve.  It provides for transfer to the Retired Reserve for soldiers who have completed a minimum of 20 qualifying years for retired pay at age 60.  It also provides that the individual must request transfer to the retired reserve in writing or be discharged upon ETS or upon reaching mandatory removal.

10.  Title 10, USC, sections 672 and 688 govern the conditions under which RA and Reserve retirees may be involuntarily called to active duty in time of war or national emergency.  AR 601-10 states that nondisability retired soldiers who have been retired for 5 years or more are in category two for recall.

11.  On 29 October 1999, a memorandum issued by the Under Secretary of Defense, states that former members of the Reserve Components who are eligible to receive retired pay at age 60 under 10 U.S.C. Section 12731, but who have terminated their Reserve status, are entitled to receive benefits provided for under Title 10 U.S.C., Chapter 54.  Identification cards reflecting the appropriate benefits will be available at Realtime Automated Personnel Identification System sites in December 1999.

CONCLUSIONS:

1.  The applicant was appropriately discharged in accordance with law and regulation.  There is no evidence in the record or submitted by the applicant of error or injustice. His contention that he was not properly advised on how to transfer to the Retired Reserve lacks creditability given his 25 years of service, 21 of which were in the Reserve Components.

2.  Notwithstanding the lack of evidence that the applicant took any positive steps for transfer to the Retired Reserve prior to his ETS, it would now be in the interest of fairness to place him in the Retired Reserve.  Additionally, he would be available to the Army as a mobilization asset should the occasion arise.

3.  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 for the individual concerned be corrected by:

	a.  revoking the order that discharge him effective 29 July 1992; and

	b.  issuing an order that transfers him to the Retired Reserve on 17 June 1992, the day following his ETS, as an exception to policy.

BOARD VOTE:  

__WM__  ___MT___  __RA___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Walter T. Morrison___
		        CHAIRPERSON

INDEX

CASE ID	AR1999030452	
SUFFIX		
RECON		
DATE BOARDED	20000420	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.03	
2.		
3.		
4.		
5.		
6.