PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 April 2000
	DOCKET NUMBER:   AR1999033216

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Ms. Sherri V. Ward		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 USAR be voided and that he instead be transferred to the Retired Reserve.

3.  The applicant states, in effect, that he recently completed 20 years of combined active and reserve service in the Army.  He received his 20 year letter from the USAR with a request from the Army Reserve Personnel Command (ARPERSCOM) that he elect a status.  At this time he submitted a request that he be discharged from the USAR because he believed that he would not lose any benefits associated with his service and in particular any associated retirement benefits.  

4.  The applicant’s military records show that he was commissioned a Medical Service Corps (MSC) 2nd Lieutenant in the USAR on 28 December 1976.  He was concurrently assigned to the USAR Control Group in order to participate in the United States Army Health Professional Scholarship Program.  

5.  On 25 June 1978, the applicant was ordered to active duty as a 1st Lieutenant in the Medical Corps (MC).  He continuously served on active duty for 13 years, 
2 months, and 2 days, until he was honorably separated, in the rank of lieutenant colonel, on 26 August 1991.  At this time he was transferred to the USAR Control Group (Reinf) where he served until his discharge on 14 May 1999.

6.  The applicant was notified by ARPERCEN (20 year letter) on 20 August 1998 that he had completed the required years of service to be eligible for Retired pay at age 60 (25 October 2010).  

7.  On 30 March 1999, a letter, “Subject:  Nonparticipation in the U. S. Army Reserve”, was forwarded to the applicant.  This letter advised him that USAR officers who had completed 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the USAR.  He was also informed that officers who do not earn 
50 points by their retirement year ending (RYE) date will be removed from active status and that his records revealed that he had not earned the necessary 
50 points during the year.  He was advised to notify ARPERSCOM if this information was incorrect and to complete the option form they enclosed.

8.  The option form enclosed with the nonparticipation letter provided him the option to either transfer to the Retired Reserve or to be discharged from the USAR.  On 14 April 1999, he completed this option form and elected to be discharged from the USAR.  He also acknowledged his understanding that this constituted a complete separation from his military status.  Accordingly, on 
14 May 1999, Orders Number D-05-929156, issued by ARPERSCOM, directed the applicant’s honorable discharge from the USAR, effective 14 May 1999.  

9.  On 26 July 1989, the applicant petitioned ARPERSCOM, requesting that he be placed on the Retired Reserve List in order to maintain his eligibility for retirement benefits.  He claimed that at the time he elected to be discharged from the USAR, he was unaware that this election would affect his entitlement to benefits associated with retirement.  He further suggested that one of the reasons he completed his 20 year commitment was to attain entitlement to retirement benefits.  

10.  On 6 October 1999, the applicant was advised, by letter from a military personnel technician of the Personnel Actions Division at ARPERSCOM, that while they encouraged soldiers to transfer to the Retired Reserve, rather than to be discharged, it was not within their authority to revoke his discharge orders and transfer him to the Retired Reserve.  The applicant was notified that this Board was the appropriate venue to make his request and he was provided an application to submit his request for relief from this Board.

11.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7, of that regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from active status will be discharged or, if qualified and if they request, will be transferred to the Retired Reserve.

12.  Army Regulation 135-178, establishes the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of the discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could only be amended by the separation authority to correct manifest errors such as the wrong character of service or to correct administrative errors such as errors concerning rank, social security number, or misspelled name.

13.  Due to recent Departmental changes, certain benefits, such as commissary and post exchange privileges, accrue to Reservists with more than 20 years of qualifying service who are transferred to the Retired Reserve that do not accrue to those discharged.

CONCLUSIONS:

1.  The applicant’s honorable discharge from the USAR was accomplished in accordance with applicable law and regulation.

2.  However, the Board found it reasonable to presume that if the applicant had fully understood and been fully advised of the benefits associated with being affiliated with the Retired Reserve, vice being discharged, he would have elected to be transferred to the Retired Reserve.  This is especially true given he subjects himself to recall as a result of receiving the benefits associated with the Retired Reserve election. 

3.  Therefore, given the possibility that the applicant was not fully informed of the advantages/disadvantages of being transferred to the Retired Reserve instead of being discharged, and the fact that he had completed the service commitment necessary to earn entitlement to retirement benefits, the Board concluded, in the interest of equity, that it would be appropriate to grant the applicant’s request for transfer to the Retired Reserve.

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 14 May 1999 discharge from the USAR of the individual concerned; and showing he was transferred to the Retired Reserve effective that same date, 14 May 1999.

BOARD VOTE:  

__sw____  ___fe___  ___cla___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred Eichorn________
		        CHAIRPERSON

INDEX

CASE ID	AR1999033216	
SUFFIX		
RECON		
DATE BOARDED	2000/04/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/05/14	
DISCHARGE AUTHORITY	AR 135-175	
DISCHARGE REASON	Non-Participation	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 341	136.0300	
2.		
3.		
4.		
5.		
6.