BOARD DATE: 21 May 2013 DOCKET NUMBER: AR20120019176 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that U.S. Army Reserve Personnel Command (AR-PERSCOM) Orders D-04-316476, dated 24 April 2003, be revoked and that he be transferred to the Retired Reserve. 2. The applicant states: * he received active duty orders, dated 24 January 2003 * his injuries prevented him from going on active duty * he was discharged on 24 April 2003 * he should have been assigned to the Retired Reserve 3. The applicant provides: * AR-PERSCOM Orders M-01-300751, dated 24 January 2003 * AR-PERSCOM Orders M-01-300751R, dated 2 April 2003 * AR-PERSCOM Orders D-04-316476, 24 April 2003 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 enlisted in the U.S. Army Reserve (USAR) on 10 June 1975. He completed training as an intelligence analyst. He remained a member of the USAR through reenlistments and extensions. 3. The applicant’s Notification of Eligibility for Retired Pay at age 60 (20-Year Letter) is dated 15 July 1999. 4. On 24 January 2003 AR-PERSCOM Orders M-01-300751 were published ordering the applicant to active duty in support of Operation Enduring Freedom, no later than 22 February 2003 but no earlier than 20 February 2003. 5. AR-PERSCOM Orders M-01-300751R were published on 2 April 2003 which revoked Orders M-01-300751, dated 24 January 2003. 6. On 24 April 2003, AR-PERSCOM Orders D-04316476 were published discharging the applicant from the USAR. 7. A review of the interactive Personnel Electronic Records Management System (iPERMS) fails to reveal an updated Chronological Statement of Retirement Points or a request for transfer to the Retired Reserve. 8. Further review of iPERMS shows that the applicant's discharge was involuntary and that at the time of his discharge, there were questions regarding the number of qualifying years that he had toward retirement. An entry was made in iPERMS by officials stating there was an issue with the "board" recommending transfer to the Standby Reserve instead of the Retired Reserve. There is also an entry in iPERMS made in January 2007 stating the applicant was informed that he was discharged and an entry made in July 2012 which shows the applicant was informed that he would need to contact the Army Review Boards Agency to have his records changed to show he was placed into the Retired Reserve. 9. Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers. 10. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning and transferring USAR Soldiers. It states assignment to the Retired Reserve is authorized in a number of circumstances but an eligible Soldier must request transfer. DISCUSSION AND CONCLUSIONS: 1. The evidence of records suggests that the applicant was qualified for transfer to the Retired Reserve in lieu of discharge on 24 April 2003. 2. The applicant's 20-Year Letter is dated 15 July 1999. He was involuntarily discharged on 24 April 2003. It is reasonable to presume that had he been given a choice or the opportunity to request transfer to the Retired Reserve, it is likely he would have done so in a timely manner. There is no evidence in the available record that shows he was provided an opportunity to do so. 3. The applicant met the eligibility requirements for assignment to the Retired Reserve. It would now be equitable and just to correct his military records by voiding his 24 April 2003 discharge from the USAR and assigning him to the Retired Reserve effective 24 April 2003. BOARD VOTE: __X___ __X______ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his 24 April 2003 discharge from the USAR and showing he was transferred to the Retired Reserve effective 24 April 2003. _______ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120019176 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120019176 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1