MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR1999034207

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his retirement date be corrected to July 2000. 

APPLICANT STATES:  That he was on a terminal assignment that did not expire until July 1999.  When he was notified on 14 April 1999 of a possible reassignment, he should have been allowed the opportunity to submit his application for retirement at any time up to the expiration date of his terminal assignment, up to 1 year in advance of the retirement date.  It was unjust that he was made to retire in December 1999.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 18 March 1973 and was discharged on        18 January 1980.  He enlisted in the U. S. Army Reserve (USAR) on 25 February 1980.  On an unknown date, he was voluntarily ordered to active duty in an active Guard/Reserve (AGR) status.

On 1 May 1995, the applicant requested a terminal assignment with the 2135th  U. S. Army Garrison, Nashville, TN.  His request was approved on 20 June 1995. The assigned position was apparently a position graded higher than the grade he held.  He was notified that he would remain stabilized through July 1999 but should he become excess, overgrade, or misaligned, he must retire or be available for worldwide reattachment.

On 20 April 1999, the applicant was informed that he had to vacate the position because a soldier with the proper grade and skill had been identified to fill it.  A new assignment had been found for him with a report date of 13 September 1999.  He apparently failed to either accept the new assignment or submit a request for retirement and so, since he was eligible for a 20-year length of service retirement, he was scheduled for retirement.  He apparently did later submit a request for retirement. He retired effective 30 November 1999.

Army Regulation 135-18 establishes policies for obtaining, administering and separating National Guard and USAR personnel serving as members of the AGR program.  Paragraph 5-1b states that all separations, voluntary or involuntary, from the program will be governed by the policy and procedures prescribed by Army Regulation 635-200 for enlisted personnel serving under Title 10, U. S. Code (Army National Guard of the United States and USAR).

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 12-9 states that a soldier who receives an alert or orders for permanent change of station (PCS) may request retirement in lieu of PCS.  When notified of a PCS, soldiers having 19 years, 6 months or more active Federal service may request a retirement date.  The retirement application must be submitted and approved within 30 days of receipt of official alert notification of the PCS.  The retirement date will be not later than 6 months from the date of notification.

Army Regulation 140-30 prescribes policies for selecting, assigning (the term later changed to “attaching”), utilizing and managing USAR personnel serving in an AGR status.  Paragraph 4-5 states that the management objective in grade alignment is to make attachments to positions that are equal to the AGR member’s grade and military occupational specialty.  Paragraph 4-6 states that AGR members may request a terminal attachment when they are within 3 years of a mandatory release from active status/duty or retirement eligibility date.  The Army Reserve Personnel Center (now the Army Reserve Personnel Command) will make every effort to honor such a request, subject to the needs of the Army.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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 satisfy the aforementioned requirement.

2.  The applicant received an approved terminal assignment until July 1999 but it was subject to the needs of the Army at all times.  A soldier with the correct grade was found to fill the position.  Separations of USAR AGR enlisted soldiers are governed by Army Regulation 635-200.  When the applicant received his official alert notification (a firm assignment and report date) on 20 April 1999 that he would have to vacate that position, by regulation he had 30 days to request retirement and it had to be effective within 6 months.  This should have come as no surprise to the applicant as he was notified when his terminal assignment was approved that he would remain stabilized through July 1999 but he would have to retire or be available for worldwide reattachment should he become excess, overgrade, or misaligned.  The Board concludes that there was no violation of regulatory policy. 

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __sk____  ___le___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034207	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.01	
2.		
3.		
4.		
5.		
6.