IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150002255 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, in effect, revocation of his 12 June 2007 discharge orders and reassignment to the Retired Reserve effective 12 June 2007. 2. The applicant states that upon completion of his combat tour in Iraq he was transferred to the Individual Ready Reserve (IRR). Upon his expiration of term of service (ETS) he was discharged, instead of reassigned to the Retired Reserve. He requested assistance from the U. S. Army Human Resources Command (HRC) and was advised that this Board must direct HRC to publish his retirement orders. 3. The applicant provides copies of his 30 October 1996, Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), and Orders D-06-712652 dated 12 June 2007. 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. Following prior service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) on 3 November 1975. He served through multiple extensions or reenlistments in a variety of assignments and attained the rank of first sergeant/E-8. 3. On 30 October 1996, the applicant was issued his 20-Year Letter notifying him that he had completed the required years of service and would be eligible for retired pay upon application at age 60. The letter advised the applicant that since he had completed 20 years of qualifying service, he must earn a minimum of 50 retirement points each retirement year to remain in an active status. This requirement may be waived for valid reasons but only once. (The applicant provided a copy of this letter and it is also filed in his official military personnel file (OMPF)). 4. He reenlisted on 7 April 2001 for a period of 6 years. Within his reenlistment contract, DA Form 3540 (Certificate and Acknowledgement of U.S. Army Reserve Service Requirements and Methods of Fulfillment), is a statement he initialed wherein he understood that after he had received his 20-Year Letter for retired pay, he must attain 50 retirement points annually to be retained in an active status in the Selected, Ready, or Standby Reserve (Active List). 5. The applicant's AHRC Form 249-E (Chronological Statement of Retirement Points) shows he had 29 years of qualifying service for retirement as of 12 June 2007. He served on active duty during his retirement year from 24 June 2004 to 23 June 2006 and this period was creditable toward nonregular retired pay. (His OMPF does not contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of active federal service.) During his retirement year from 24 June 2006 to 12 June 2007 the applicant only earned 17 retirement points. 6. Orders D-06-712625, issued by HRC, St. Louis, MO, dated 12 June 2007, honorably discharged the applicant from the USAR effective 12 June 2007. 7. In the processing of this case, an advisory opinion was obtained from HRC. The advisory official recommended granting the applicant's request. He stated the applicant failed to request transfer to the Retired Reserve prior to his ETS date and the computer system automatically issued a discharge order. This was clearly an error and the Board should approve his request for transfer to the Retired Reserve. 8. A copy of the advisory opinion was provided to the applicant for comments or a rebuttal. He responded agreeing with the advisory opinion and stated he already had a retirement letter (by which he apparently meant his 20-Year Letter). 9. Army Regulation 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers. Chapter 4 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service the Soldier will be discharged by the separation authority. A Soldier may not be held in the Army beyond the normal ETS unless the service obligation is extended by law. 10. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states a Soldier who has accrued 20 qualifying years of service for retired pay under the provisions of Title 10, U.S. Code sections 12731 and 12732 must attain 50 retirement points annually to be retained in an active status in the Selected Reserve, the IRR or on the Standby Reserve (Active List). A Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date will be processed for removal from active status per Army Regulation 135-178. The Assistant Secretary of the Army (Manpower and Reserve Affairs) has waiver authority. 11. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 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 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. DISCUSSION AND CONCLUSIONS: 1. The evidence shows the applicant had completed over 20 years of qualifying service for retirement in 1996 and he was issued his 20-Year Letter. At that time the letter informed him he must earn a minimum of 50 retirement points during his retirement year to maintain an active status in the USAR. He reenlisted in April 2001 for a period of 6 years which established his new expiration of term of service date in April 2007. Within the reenlistment contract documents he signed or initialed, he again acknowledged the requirement to attain 50 retirement points during his retirement year or he would be discharged from the USAR unless he requested transfer to the Retired Reserve. During his retirement year from 2006 to 2007, he only earned 17 retirement points. 2. In June 2007, the applicant was discharged from the USAR because he had not attained 50 retirement points during his retirement year and because of his expiration of his term of service based on his last reenlistment contract ending in April 2007. There is no evidence of record to show the applicant requested a transfer to the Retired Reserve upon the completion of his active federal service in 2006 and subsequent transfer to the IRR. 3. Notwithstanding the established regulatory guidance requiring a Soldier in receipt of a 20-Year Letter to attain 50 retirement points per year or be discharged, the HRC advising official recommends the applicant's discharge orders be revoked and new orders be published transferring the applicant to the Retired Reserve effective 12 June 2007. 4. Based on the regulatory guidance that states a waiver may be granted, the applicant’s record should be corrected to show that in June 2007 he was transferred to the Retired Reserve instead of discharged from the USAR. BOARD VOTE: ___x____ ___x____ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 revoking Orders D-06-712652 dated 12 June 2007, and issuing orders reassigning the applicant to the Retired Reserve effective 12 June 2007. ____________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) AR20120018742 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002255 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1