RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 October 2007 DOCKET NUMBER: AR20070007921 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. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Ms. Carmen Duncan Chairperson Mr. Chester A. Damian Member Mr. Ronald D. Gant Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his US Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve 2. The applicant states that he received his notification of eligibility for retired pay at age 60 on 26 April 1991. He then separated from the Rhode Island Army National Guard (RIARNG) on 14 August 1992. On or about 1 October 1992, a member of the USAR told him that he could continue to attend drills in non-pay status and earn additional retirement points each month. He further adds that he was not counseled on the future impact this action could have on his retirement status. After attending one drill, he informed his unit leadership that he desired to continue in a Retired Reserve status, but received no exit briefing or counseling at the time. On 26 April 2007, he completed his application for retired pay with assistance from members of the RIARNG. He then found out that he was transferred to the USAR Control Group (Reinforcement) on 14 August 1992. He also found out that his USAR unit took no action in 1992 and that the USAR involuntarily discharged him due to unsatisfactory participation. He further adds that no one explained to him the difference between Reinforcement, Retired, and Separation. He concludes that since he attended a drill in a non-paid status in 1992, the RIARNG could not amend his 1992 discharge orders to show assignment to the USAR Control Group (Retired Reserve). 3. The applicant provides a copy of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) dated 26 April 1991; a copy of Orders Number 153-8, dated 27 August 1992 honorably separating him from the RIARNG and transferring him to the USAR (Reinforcement); a copy of his National Guard Bureau Form 22 (Report of Separation and Record of Service); and a copy of his Retirement Point Summary System Statement in support of his application CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military records show he was born on 1 March 1948. He enlisted in the Regular Army as a private/E-1 on 27 March 1970 for a period of 3 years. He received a 12-month early release for the purpose of joining the RIARNG and was discharged from the Army on 8 April 1972. He commenced training with the RIARNG on 20 June 1972. 3. On 1 July 1975, the applicant applied for Federal Recognition as an ARNG officer. He was accepted and extended Federal Recognition on 11 August 1975, as a 2nd Lieutenant, in the Medical Services (MS) Corps. He was branch-transferred into the Military Police (MP) Corps on 19 August 1976, promoted to captain/pay grade O-3 on 11 December 1981, and promoted to major/pay grade O-4 on 11 December 1988. 4. On 26 April 1991, Headquarters, State Area Command, RIARNG, Providence, Rhode Island, issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 5. On 17 May 1992, the applicant tendered his resignation as an officer of the RIARNG, effective 31 July 1992, and requested a transfer to the USAR with an assignment to the USAR Control Group (Reinforcement) under the provisions of National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition). 6. On 17 May 1992, the Deputy Brigade Commander, 43rd Military Police Brigade, Warwick, Rhode Island, recommended approval of the resignation request with a note that stated that "it is regrettable to forward this request, however, he (applicant) feels it is in his and the organizations best interest to request this action." 7. On 24 August 1992, the Director of Personnel, RIARNG, returned the applicant's request for resignation without action. He stated that a resignation in lieu of involuntary separation by a board must be submitted before final action is taken on the board proceedings and that in the applicant's case, this was not done. The Director of Personnel also stated that the applicant was notified of impending board action on 12 March 1992 with the option of submitting a letter of consideration by the board, but he did not do that. He concluded that the appropriate separation action would be affected and that the applicant would be transferred to the USAR Control Group (Reinforcement) as requested. 8. On 27 August 1992, Headquarters, State Area Command, RIARNG, Providence, Rhode Island, published Orders Number 153-8, honorably separating the applicant from the ARNG effective 14 August 1992 and transferring him to the USAR Control Group (Reinforcement), in accordance with National Guard Regulation 635-102 (Officers and Warrant Officers Selective Retention) 9. On 21 July 1995, U.S. Army Reserve Personnel Center, St. Louis, Missouri, published Orders Number D-070560880, honorably discharged the applicant effective 21 July 1995, under the authority of Army Regulation 135-175 (Separation of Officers), for unsatisfactory participation. 10. The applicant's records do not show that he requested a transfer to the Retired Reserve. The applicant will reach age 60 on 1 March 2008. 11. An advisory opinion was obtained on 19 June 2007 in the processing of this case. The Chief, Transition and Separation, Army Human Resources Command, St. Louis, Missouri, recommended disapproval of the applicant's request to revoke his discharge orders and assigning him to the Retired Reserve. He further stated that: a. Review of the applicant's Official Military Personnel File (OMPF) did not provide any documentation (normally stated in the context of the 20-year letter) that covered the requirement of law to earn 50 or more retirement points by each retirement year ending date (RYE). Additionally, there is no record of the applicant requesting a transfer to the Ready Reserve. b. Soldiers who have attained 20 qualifying years of service are issued a 20-year letter and are required by law to earn 50 or more retirement points each RYE. Failure to meet the standards results in the issuance of a Non-Participation Letter (Non-Par) that informs the Soldier of his requirement. During the 1990s, the Letter offered the Soldier the options of requesting a one time waiver, transferring to the Retired Reserve, or discharge. The Letter also informed the Soldier that failure to respond within 90 days would result in a discharge. In the applicant's case, he did not respond to the Non-Par Letter and was therefore discharged. 12. The applicant was provided a copy of the advisory opinion on 9 September 2007. He did not acknowledge receipt or respond. 13. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), Paragraph 2-1a indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier. The requirement to serve the last 8 years in a Reserve Component, later amended to the last 6 years, and on 26 April 2005, this requirement was reduced to zero (0) years. 14. Army Regulation 135-180 also specifies, in part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service. 15. Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 of the regulation relates to the removal of Soldiers from an 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. In particular, paragraph 7-3.1 states that an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List). An officer (other than a commissioned WO) or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from active status. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his 21 July 1995 discharge orders should be revoked and that he be assigned to the Retired Reserve because he was not informed or counseled about the requirement to earn 50 or more retirement points once issued a 20-year letter and the adverse impact a discharge may have on him in the future. 2. Records show that the applicant was qualified for transfer to the Retired Reserve based on completion of 20 qualifying years of service for Reserve retirement. However, there is no evidence in the available records and the applicant has not provided sufficient evidence, to show that he requested transfer to the Retired Reserve. Additionally, he failed to earn 50 points which is required to remain in an active status. The applicant had the option to request a waiver of his transfer for one-year; however, he did not exercise this option. 3. The applicant was a field grade officer at the time he received his 20-year letter. The claim that he needed an exit briefing or counseling about his entitlements is without merit. The applicant knew, or should have known, that he needed to earn 50 or more points. He did not do that. Therefore, in view of the foregoing evidence, the applicant is not entitled to a relief in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __cd____ __cad___ __rdg___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. Carmen Duncan ______________________ CHAIRPERSON INDEX CASE ID AR20070007921 SUFFIX RECON DATE BOARDED 20071030 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 136.0200 2. 3. 4. 5. 6.