PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           17 March 1999                   
	DOCKET NUMBER:   AR1999015212

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve		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 compensation for missed drills and alternate annual training and award of transition benefits.

3.  The applicant states that during the period the 4159th U. S. Army Reserve Forces (USARF) School was in the process of inactivating, he was not properly reassigned and so could not continue training.  The unit actually inactivated on 18 August 1996, not on 15 November 1996.  The last time he was allowed to attend inactive duty training (IDT) was during September 1996.  He missed multiple unit training assemblies (MUTA) for the months of October and November 1996, for 8 retirement points.  He was not given the opportunity to apply for and perform an alternate annual training event during the month of October 1996.  The period would have normally been for 12 or 13 days or as much as 15 calendar days.  He also believes he should be entitled to transition benefits.

4.  The applicant’s military records show that he was born on 22 January 1939.  He served in the Regular Army from 3 November 1961 – 28 September 1963.  He served in the active U. S. Army Reserve from 29 September 1963 until his reassignment to the Retired Reserve for completion of maximum years of service (MYOS) on 3 November 1996.

5.  On 29 April 1996, the 95th Division forwarded to its subordinate units a memorandum, subject:  Unit Transitioning Plans.  Enclosure 1 to this memorandum gave the 4159th USARF School an initial planning date of            18 August 1996 for deactivation/activation ceremonies.  Enclosure 2 was the transition plan for the 4159th USARF School.  The plan noted that reserve component personnel should be reassigned by 18 September 1996, full-time unit support (FTUS) personnel should be reassigned by 14 October 1996, and its pay account would be closed by 30 October 1996.

6.  On 30 July 1996, the applicant applied for transfer to the Retired Reserve with Special Separation Pay as an assignment to another unit was not available.  The DA Form 4651-R, Request for Reserve Component Assignment or Attachment, noted that the effective date would be 19 August 1996, authority and reason for transfer Army Regulation 140-10, Transition Benefits Program.

7.  On 13 August 1996, the 95th Division forwarded the request to the U. S. Army Reserve Command, but noted that the applicant would reach his MYOS on         3 November 1996.  Since his unit was not to be discontinued until 15 November 1996, he was being removed for MYOS and not for unit inactivation; therefore, he was not eligible for the Selective Reserve Transition Benefit Program (SRTBP).  The 95th Division amended his request for transfer to the Retired Reserve, changing the effective date to 3 November 1996 and the authority and reason for transfer to Army Regulation 140-10, MYOS.

8.  On 3 November 1996, the applicant was transferred to the Retired Reserve for completing his maximum years of service.

9.  On 15 November 1996, the 4159th USARF School was inactivated.

10.  On 17 January 1997, the U. S. Army Reserve Command responded to a letter from the applicant addressing the same concerns as in this application.  He was informed that eligibility for Special Separation Pay is based on whichever separation action occurs first.  Even if his unit had, for all practical purposes, shut down prior to the 15 November effective date, that was not the same as inactivation.  The unit was inactivated on 15 November 1996; his MYOS was on 3 November 1996.  However, he should have been properly reassigned and allowed to continue drilling.  If he was not allowed to drill in August, September or October, he could apply to this Board for the pay and allowances he would have ordinarily earned for those drills.

11.  Army Regulation 140-10 covers policy and procedures for assigning attaching, removing and transferring U. S. Army Reserve soldiers.  In pertinent part, it states that command sergeants major/sergeants major assigned to a U. S. Army Reserve Troop Program Unit (TPU) and who have completed 20 years of qualifying service for retired pay will be removed from the TPU (and transferred to the Retired Reserve if they so request) upon attaining 35 years of service.

12.  Army Regulation 140-1 sets policy on the U. S. Army Reserve mission, its organization and training.  In pertinent part, it states that USARF schools will conduct 48 unit training assemblies (UTAs) each fiscal year.

13.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  In pertinent part, it states one retirement point is awarded for each scheduled 4-hour period of IDT at UTA/MUTA.

14.  The National Defense Authorization Act for Fiscal Year 1993, title XLIV, subtitle B, Guard and Reserve Transition Initiatives, provides that the protections, preferences and benefits provided for in regulations prescribed in accordance with this subtitle do not apply with respect to a member of the Selected Reserve who is discharged or transferred to the Retired Reserve because he/she no longer meets the qualifications for membership in the Selected Reserve.

CONCLUSIONS:

1.  In April 1996, the 95th Division notified the 4159th USARF School that its “initial planning date” for deactivation/activation ceremonies was 18 August 1996.
The memorandum did not explain what was meant to be accomplished on this planning date.  Orders had already been published inactivating the unit effective 15 November 1996.

2.  The applicant states that the unit actually inactivated on 18 August 1996, yet he also states that the last time he was allowed to attend IDT was during September 1996.  This would agree with the unit’s transition plan to finish reassigning reserve component personnel on 18 September 1996.  The transition plan also noted that 4159th USARF School’s last planned activity was to close its pay account by 30 October 1996.  

3.  The U. S. Army Reserve Command, in its 17 January 1997 letter to the applicant, noted that he had not been properly reassigned.  The Board believes this likely occurred because, with his MYOS being 3 November 1996, his reassignment would not be productive considering he had less than 2 month’s remaining time in the Selected Reserve.  However, the failure to reassign him did cause him to miss his normal October 1996 drill period.

4.  The Board does not believe that the applicant missed a normal drill period in November 1996.  He was mandatorily transferred to the Retired Reserve effective 3 November 1996.  It is unlikely he would have been scheduled for a drill period on 1-2 November 1996, as these dates fell on a Friday/Saturday in 1996.

5.  The Board does not believe the applicant was unjustly deprived of an opportunity to perform annual training in October 1996.  Most annual training is not performed during the first month of the fiscal year.  The applicant has provided no evidence to show he has a past history of performing annual training in October. 

6.  The Board believes the intent of the Selected Reserve Transition Benefit Program is to provide for soldiers who are unexpectedly deprived of a career due to a drawdown-caused unit inactivation and who are unable to obtain an assignment with another unit.  The applicant’s career was not unexpectedly terminated; he was separated from the Selected Reserve because he had completed his maximum years of service which coincidentally happened just two weeks prior to his unit’s inactivation.  By law, this makes him ineligible to participate in the Benefit Program.  The Board does not believe that an injustice occurred.

7.  In view of the foregoing, it would be proper and in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by paying the applicant the pay and allowances he would have earned for attending his MUTA in October 1996 (four 4-hour periods) and awarding him the four retirement points he would have earned.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__TSK___  __OWT__  __JPS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Ted S. Kanamine
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999015212	
SUFFIX		
RECON		
DATE BOARDED	19990317	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.	135.02	
3.		
4.		
5.		
6.