IN THE CASE OF: BOARD DATE: 16 June 2020 DOCKET NUMBER: AR20190001829 APPLICANT REQUESTS: * revocation of his U.S. Army Reserve (USAR) discharge orders * transfer to the Retired Reserve APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Individual Ready Reserve (IRR) Request, Employment Conflict Checklist * Computer Sciences Corporation Memorandum for Record, undated * Request for the Issuance of Non-Rated Statement, dated 24 September 2008 * DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 19 December 2008 * Commander's Recommendation for IRR Transfer, dated 28 January 2009 * Applicant's Request to transfer to the IRR due to employment conflict, dated 30 January 2009 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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, in effect, he was working as a civilian contractor, Field Service Technician, supporting all military components in Iraq and he was not able to participate in or fulfill his obligation to the USAR as a Troop Program Unit (TPU) Soldier. His intent was always to transfer to the IRR and he had the support of his chain of command. 3. On 14 August 2008, the U.S. Army Human Resources Command (HRC) notified the applicant that he completed the required years of service and he was eligible for retired pay at age 60. The applicant reached age 60 on 6 April 2019. 4. The applicant provided a DA Form 4851, dated 19 December 2008, showing he requested transfer to the IRR due to an employment conflict. On 28 January 2009, his commander recommended the applicant be released to the IRR, as the applicant was unable to participate in and fulfill his obligation to the USAR. 5. A review of the applicant's HRC Soldier Management System (SMS) record shows an IRR Welcome Letter was mailed to him on 7 April 2009. Subsequently, upon receiving his 20-Year Letter and a nonparticipant letter, the applicant contacted HRC on 17 November 2009. The notes indicate that he stated that he was in Iraq as a civilian contractor before the call disconnected. 6. HRC Orders D-12-923919, dated 21 December 2009, honorably discharged the applicant from the USAR. This order shows the applicant was assigned to the U.S. Army Control Group (Reinforcement) at the time of his discharge. 7. His SMS record further shows the applicant contacted HRC on 6 January 2010 and requested to be discharged, and not transferred to the Retired Reserve. 8. HRC Orders C-01-990082, dated 4 January 2019, placed the applicant on the Army of the United States Retired List effective 6 April 2019. 9. On 24 March 2020, the Chief, Personnel Actions Branch, HRC, provided an advisory opinion. This official stated: a. Although the applicant was unaware, he had in fact been transferred to the IRR effective 5 March 2009 (orders not provided by HRC). At the time of transfer, the applicant had completed over 20 years of credible service. b. In accordance with Title 10, U.S. Code, section 12642, a Soldier is required to complete credible years of service to remain in an active status. The Soldier must request transfer to the Retired Reserve by requesting a “one-time waiver,” or by asking for his status to be changed to the Standby Reserve (Inactive), due to his employment overseas. c. The applicant was discharged on18 December 2009 because he failed to comply or request transfer to the Retired Reserve in writing. In any case, the applicant's unit could have transferred him into the Standby Reserve vice IRR, hence allowing the individual the option to not perform duty during the period he was overseas. This official recommended the Board grant relief by revoking the discharge orders and issuing orders transferring the applicant to the Retired Reserve. 10. The applicant was provided a copy of this advisory opinion but he did not respond within the time allowed. 11. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) 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. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. To resolve the applicant’s issue justly and equitably, it was noted that the Chief, Personnel Actions Branch, HRC, recommended the Board grant relief by revoking the discharge orders and issuing orders transferring the applicant to the Retired Reserve. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the discharge orders HRC Orders D-12-923919, dated 21 December 2009, and issuing orders transferring the applicant to the Retired Reserve effective 21 December 2009. 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, United States 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 ABCMR 3's year statute of limitations if the determines it would be in the interest of justice to do so. 2. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. a. Chapter 4 prescribes policy and procedures governing the voluntary or involuntary assignment, reassignment, or transfer of a Soldier to and from the various control groups. Section III prescribes the policy and identifies the conditions governing the transfer or reassignment of enlisted Soldiers from the Selected, Standby, and Retired Reserve to an appropriate control group. b. The voluntary reassignment of a Troop Program Unit or Individual Mobilized Augmentee Soldier to an appropriate control group of the Individual Ready Reserve is authorized in limited circumstances to include when there is a confirmed unresolvable employment conflict. c. Assignment to the Retired Reserve is authorized for Soldiers whom are entitled to receive retired pay from the U.S. Armed Forces because of prior military service. Eligible Soldiers must request transfer if they have completed a total of 20 years of active or inactive service in the U.S. armed forces. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001829 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1