PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 October 2001                   
	DOCKET NUMBER:   AR2001059198

	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. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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 from the U.S. Army Reserve (USAR) be voided and that he instead be transferred to the Retired Reserve.

3.  The applicant states that he obtained 20 good years for retirement in 1990.  He contends that his orders read discharge, but should read Retired Reserve.  He also contends that the unit administrator or the 125th Army Reserve Command made an error in requesting a discharge.

4.  The applicant’s military records show that he entered active duty on 25 July 1962 and was honorably discharged from active duty on 11 December 1967 and transferred to the USAR.  He served in the USAR from 12 December 1967 through 24 July 1968.  After a break in service, the applicant enlisted in the USAR on 2 October 1973 and remained in the USAR until 1 October 1977.  After a break in service, the applicant enlisted in the USAR on 6 August 1979 and continued to serve through continuous reenlistments.  

5.  On 21 September 1990 the Chief, Reserve Personnel Division of the 
844th Engineer Battalion requested that the Army Reserve Personnel Center (ARPERCEN) issue a Letter of Notification of Eligibility for Retired Pay at Age 
60 (20-Year Letter) to the applicant.  This letter also contained a Chronological Record of Military Service, dated 9 August 1990, which shows the applicant had completed 20 years of qualifying service for retirement purposes.  However, the available records do not contain a copy of the applicant’s 20-Year Letter.

6.  On 20 November 1990 the applicant was ordered to active duty.  On 
24 January 1991 the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-200, paragraph 6-3a, for dependency, and transferred to the USAR Control Group (Individual Ready Reserve).

7.  ARPERCEN Orders D-06-018318, dated 12 June 1991, show the applicant was honorably discharged from the Ready Reserve (Reinforcement) effective 
12 June 1991. 

8.  In the processing of this case, an advisory opinion was obtained from the Transition and Separation Branch of the Army Reserve Personnel Command.  This office points out that the applicant’s discharge orders were published because he did not request transfer to the Retired Reserve at the end of his term of service nor did he reenlist.  Under the provisions of Army Regulation 140-10, paragraph 6-1(a), soldiers eligible for transfer to the Retired Reserve must request transfer.  This office opined that the discharge orders issued were valid and in accordance with Army regulations; however, recommended that authority should be given to void the discharge orders and allow the applicant to transfer to the Retired Reserve as he desires.

9.  On 6 August 2001 the advisory opinion was furnished to the applicant for his review and possible rebuttal.  The applicant responded with a letter of rebuttal dated 10 August 2001.  In summary, the applicant contends that his desire from the start was to be assigned to the Retired Reserve, not discharged from the USAR.  He contends that at the time his request was sent in his entire unit was deployed to Saudi Arabia in support of Desert Storm.  He was unable to deploy and was sent back to his hometown and continued drilling until the unit returned. However, his 20 years came about prior to their return and a Reserve lieutenant colonel must have submitted the DA Form 4651-R requesting that he be discharged.  He states that no one asked if he wanted to go to the Retired Reserve or be discharged.  He assumed that both were one and the same.  As stated in the advisory opinion, he requests that authority be given to void the discharge orders and allow him to transfer to the Retired Reserve.   

10.  Army Regulation 140-10, in effect at the time, set 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 an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

11.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components.  Paragraph 1-30 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

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

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s discharge was accomplished in accordance with law and regulations applicable at the time.

2.  However, it is apparent that the applicant was qualified for transfer to the Retired Reserve as indicated by the request for issuance of a 20-Year Letter.  It appears that, had the applicant been informed that he needed to request transfer to the Retired Reserve, he would have elected to do so.  
3.  The advisory opinion supports the applicant’s request that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve. 

4.  Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records by voiding his discharge of 12 June 1991 and assigning him to the Retired Reserve effective the same date.

5.  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: 

	a.  by voiding the 12 June 1991 discharge from the USAR of the individual concerned; and

	b.  by showing that he was transferred to the Retired Reserve effective 
12 June 1991.

BOARD VOTE:  

CLA____  AAO____  HBO_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Celia L. Adolphi________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059198	
SUFFIX		
RECON		
DATE BOARDED	20011030	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.0300	
2.		
3.		
4.		
5.		
6.