IN THE CASE OF: BOARD DATE: 23 February 2016 DOCKET NUMBER: AR20150005767 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, that his records be corrected to show he was transferred to the Retired Reserve on 9 March 2005. 2. He states he was discharged from the Army Reserve in 2005 and not placed on the Individual Ready Reserve (IRR) list. He subsequently retired in April 2007. He says he needs to get his orders dated 9 March 2005 amended so his status can be changed. He explains that he and his wife were robbed and almost beaten to death in Berlin, Germany, and because of this incident, he was discharged and not placed in the IRR. He further states that because of his status as a former military member, he did not get a blue identification card, but a tan one instead. Because of his tan identification card, he cannot fly space-available like his other retired friends. 3. He provides: * Orders D-03-510900, dated 28 March 2005 * Orders C03-392212, dated 14 March 2003 * ARPC Form 249-E (Chronological Statement of Retirement Points), dated 8 November 2012 * applicant's correspondence concerning robbery * U.S. Army Human Resources Command (HRC) letter, dated 14 March 2013 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 was born on 16 April 1947. He was appointed as an officer of the Regular Army on 27 March 1970 and entered active duty on 31 July 1970. He was honorably released from active duty on 1 March 1977 and transferred to the U.S. Army Reserve (USAR) the following day. 3. He remained in the USAR through subsequent assignments. 4. A copy of his 20-year letter is not contained in his available file. His ARPC Form 249-E shows he was credited with 20 years, 7 months, and 2 days of qualifying service as of 1 March 1997. For the years from 2 March 1997 until 9 March 2005, this form shows he was a member of the USAR and not in a drilling status. He earned 15 membership points each year and he earned only 22 extension course points for the year ending on 1 March 1998. None of these years are credited as qualifying years toward retirement because he did not earn 50 retirement points per year. 5. Orders D-03-510900 dated 28 March 2005 show he was honorably discharged from the USAR effective 9 March 2005. A German address was listed as his mailing address in 2005. The authority for the discharge is Army Regulation 135-175 (Separation of Officers). 5. Orders C03-392212 show he was placed on the retired list effective 16 April 2007. 6. A letter from HRC dated 14 March 2013 shows his application for retired pay was approved. 7. There are no documents in the applicant’s available records pertaining to a request or an election form showing he requested transfer to the Retired Reserve. 8. On 7 October 2015, an advisory opinion was rendered by the Chief, Soldier Programs Branch, HRC, who states the applicant is a former member receiving retired pay. His orders indicate that he was discharged on 9 March 2005 and retired effective 16 April 2007 based on his 20 years of qualifying service for nonregular retired pay under the provisions of Title 10, U.S. Code, section 1223. 9. On 27 October 2015, the advisory opinion was forwarded to the applicant for his acknowledgement and/or comments, but no response was received. 10. The applicant provides documentation confirming he was the victim of an attempted murder on 7 July 1997. 11. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in 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. For an officer or enlisted Soldier (other than a commissioned warrant officer), 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 or enlisted Soldier (other than a commissioned warrant officer) who fails to attain 50 points by the anniversary of his retirement year, will be removed from active status. DISCUSSION AND CONCLUSIONS: 1. By March 1997 the applicant had over 20 years of qualifying service for nonregular retired pay. He provided documentation that confirms he was a victim of an attempted murder on 7 July 1997. For the next 7 years he remained in the IRR in an active status though he did not attain 50 qualifying points per retirement year as required by regulation. As he did not comply with the regulatory guidance he should have been removed from the IRR in March 1999. For unknown reasons it was not until 2005 that he was removed and discharged. 2. There is no evidence and the applicant did not provide any to show he requested to be transferred to the Retired Reserve during the 7 years after he completed his 20th year of qualifying service for nonregular retired pay. He has not provided medical evidence to show he was incapacitated during the 7-year period after the incident that would have prevented him from requesting a transfer to the Retired Reserve. Orders D-03-510900 dated 28 March 2005 show he was honorably discharged from the USAR effective 9 March 2005. In the absence of documentation indicating his desire to be transferred to the Retired Reserve at the time of his discharge, administrative regularity must be presumed. Therefore, it appears there is no reason to revoke his discharge orders and issue him orders placing him in the Retired Reserve. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ 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. _______ _ __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) AR20150005767 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005767 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1