ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 23 October 2019 DOCKET NUMBER: AR20160017361 APPLICANT REQUESTS: change his assignment to United States Army Reserve (USAR) Control Group Individual Ready Reserve (IRR) to the USAR Control Group (Retired Reserve). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * miscellaneous documents from Official Military Personnel File (OMPF) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states completed over 20 years of service towards retirement. His USAR unit failed to grant his request to be assigned to the USAR Control Group (Retired Reserve) and was erroneously assigned to the USAR Control Group (IRR). 3. The applicant provides numerous documents from his OMPF. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Navy (RN) on 23 April 1979. b. He was released from the RN on 20 April 1984 with an honorable characterization of service and assigned to the United States Naval Reserve. His DD Form 214 (Certificate of Release or Discharge) shows that he completed 4 years, 11 months and 28 days of active service. c. He enlisted in the Regular Army (RA) on 7 August 1984. d. He was released from RA on 19 June 1987 with an honorable characterization of service under provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8 (Reduction in authorized Strength) and assigned to the USAR Control Group (Reinforcement). His DD Form 214 shows that he completed 2 years, 10 months, and 13 days of active service. e. He reenlisted in the USAR Control Group (IRR) on 20 June 1987. f. USAR Personnel Center Order Number C-08-034424 dated 11 August 1987, he was assigned to 820 Engineer Battalion Company A from the USAR Control Group (Reinforcement) on 11 August 1987. g. He reenlisted in the USAR on 10 May 1989. h. The facts and circumstances surrounding his assignment to the USAR Control Group (Reinforcement) is not available for the Board to review. i. USAR Personnel Center Order Number D-06-058049 dated 14 June 1989, he was discharged from the USAR Control Group (Reinforcement) with an honorable characterization of service on 19 June 1989. j. The facts and circumstances surrounding his enlistment into the USAR is not available for the Board to review. k. His DD Form 220 (Active Duty Report) shows that he was ordered to active duty on 5 February 1993 and was released from active duty on 17 March 1993. l. Army Reserve Readiness Training Center Order Number 5-12 dated 4 November 1993, he was discharged from the USAR under provision of AR 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel), paragraph 3-4 (Appointment as a commissioned or warrant officer). m. DA Form 71 (Oath of Office – Military Personnel), he was appointed as a reserve warrant officer on 5 November 1993 in the grade of warrant officer one (WO1) / W-1. n. His DD Form 214 shows that he was ordered to active duty on 14 February 1994. He was released from active duty on 30 September 1994 with an honorable characterization of service for completion of required active service. His DD Form 214 shows that he completed 7 months and 17 days of active service. o. DA Form 71 he was appointed as a reserve commissioned warrant officer on 25 April 1996 in the grade of chief warrant officer two (CW2) / W-2. p. USAR Personnel Command memorandum dated 6 May 1999, he was notified of eligibility for retired pay at age 60. q. 63rd Regional Support Command Order Number 00-054-007 dated 23 February 2000, he was assigned to the USAR Control Group (Reinforcement) on 23 February 2000 for unsatisfactory performance under provision of AR 140-10 (Assignments, Attachments, Details, and Transfers). r. U.S. Total Army Personnel Command memorandum dated 29 August 2000, he was notified that he was considered for promotion but he was not selected. s. 63rd Regional Support Command Order Number 01-091-01 dated 2 April 2001 amended order number 00-054-007 dated 23 February 2000 to change unsatisfactory performance to unsatisfactory participation. t. U.S. Total Army Personnel Command memorandum dated 21 August 2001, he was notified that he was considered for promotion but was not selected. As a result of the second non-selection for promotion he would be discharged from the USAR in accordance with (IAW) Title 10, USC 14513 or AR 140-10 no later than 1 January 2002, unless he was eligible and requested to be transferred to the Retired Reserve. u. USAR Personnel Command Order Number D-10-149876 dated 25 October 2001, he was discharged from the USAR with an honorable characterization of service under provision of AR 135-175 (Army National Guard and Army Reserve – Separation of Officers). v. ARPC 249-2-E (Army Reserve Personnel Command Chronological Statement of Retirement Points) dated 11 April 2002 shows that he completed 20 years of service towards retirement. w. DA Form 5016 (Chronological Statement of Retirement Points) dated 22 January 2019, shows that he completed 20 years of service towards retirement. 5. By regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove or transfer USAR Soldiers. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The applicant’s contentions were carefully considered. Evidence of record shows he received a 20-year letter in 1999. His statement of retirement points shows he earned 20 years of credit in retirement points prior to his separation. His record is absent evidence that shows he requested to retire and his request was denied. Based upon the preponderance of the evidence, the Board agreed he should have been transferred to the Retired Reserve instead of being discharged on 25 October 2001 and not doing so would result in an injustice which should be corrected. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 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 his discharge orders, and issuing him orders transferring him to the Retired Reserves effective 25 October 2001. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), in effect at the time, prescribes policies, responsibilities, and procedures to assign, attach, detail, remove or transfer USAR Soldiers. a. Chapter 4-5.1 (Involuntary reassignment of troop program Unit (TPU) officer who have not completed officer basic course (OBC) or are assigned above the maximum allowable strength limits or are declared unsatisfactory participants), the involuntary reassignment of certain categories of TPU officers. This is not authority to eliminate officer from TPU assignments under adverse conditions rather it is to permit reassignments which will support maximum unit readiness and strength. (1) The involuntary reassignment of an officer to an appropriate control group of the Individual Ready Reserve (IRR) is authorized under any one of the following conditions. When an officer: * has not completed OBC within 24 months of appointment * is assigned above the maximum allowable strength limits established by AR 140-1 (Army Reserve – Mission, Organization, and Training), paragraph 2-4 (Deactivation, relocation, and reorganization of USAR TPUs) * has accrued nine unexcused absences from TPU training assemblies within a 12 month period per AR 135-91, paragraph 4-11 b. Chapter 6 (Transfer to and from the Retired Reserve), eligible Soldier must request transfer if they: * are entitled to receive retired pay from the Armed Forces because of prior military service * have completed a total of 20 years of active or inactive service in the Armed Forces * are medically disqualified for active duty resulting from a service connected disability * were appointed on the condition the Soldier immediately apply for transfer to the Retired Reserve * reached age 37 and completed a minimum of 8 years of qualifying Federal service and served at least 6 month on active duty in time of war * completed 10 or more years of active Federal commissioned service * are medically disqualified not as a result of own misconduct for retention c. Chapter 7 (Removal from Active Status), these provisions apply to Soldiers assigned to the Selected Reserve, the Individual Ready Reserve (IRR), and the Standby reserve (Active List). Soldier removed from the active status will be discharged or transferred to the Retired Reserve is authorized when requested by Soldiers who are eligible. 3. Army Regulation (AR) 135-91, in effect at the time, defines Army National Guard (ARNG) and U.S. Army Reserve (USAR) service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. a. Chapter 3 (Participation Requirement), satisfactory participation is (a) attending all scheduled drills unless excused by the unit commander or granted a leave of absence. Soldier present at a scheduled drill will not receive credit for attendance unless they are wearing the prescribed uniform. They must also present a neat and Soldierly appearance and perform assigned duties in a satisfactory manner as determined by the unit commander. Soldiers who do not receive credit for attending a drill will be charged with an unexcused absence. (b) Attend and satisfactorily completing the entire period of annual training (AT) unless excused by proper authority. (c) Obtaining a unit assignment during an authorized leave of absence. b. Chapter 4-11 (unsatisfactory participation), a Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1 year period. Unless an absence is authorized, a Soldier failing to attend a scheduled single or multiple unit training assembly will be charged with an unexcused absence. For counting unexcused absences, the 1 year period will begin on the date of the absence. It will end 1 year later. 4. AR 135-155 (Army National Guard and U.S. Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), in effect at the time, prescribes policy and procedures used for selecting and promoting commissioned officers and warrant officers of the U.S. Army Reserve (USAR). This regulation supports the objectives of the Army’s officer promotion system that provides for career progression based on recognition of an officer’s potential to serve in positions of increased responsibility. a. Chapter 4-29 (Non-selection for Promotion), non-selection by a promotion board is administratively final. If law requires removal from active status, the officer must be removed within the prescribed time limits. b. Chapter 4-30 (Mandatory consideration non-selection policy), b (Second Non- Selection) (1) an officer who twice fails to be selected for promotion to the grade of CW3 or CW4 will not be considered again for promotion and will be removed from active status unless subsequently placed on a promotion list, selected for continuation or retained under any other provision of law. 5. Title 10 USC §?14513, Failure of selection for promotion: transfer, retirement, or discharge, each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections: a. Be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force; b. Be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve; or: c. If the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017361 5 1