IN THE CASE OF: BOARD DATE: 13 July 2023 DOCKET NUMBER: AR20210015161 APPLICANT REQUESTS: in effect, that his 5 November 2002 U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve instead. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * 2002 U.S. Army Reserve Discharge Order * NCO valuation Report, January 2000 through December 2000 * Chronological Statement of Retirement Points FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 his 20-Year Letter is dated 25 April 2001 and his discharge order is dated 5 November 2002. He learned a few years ago that his retirement pay was negatively affected by not benefitting in COLA (cost of living allowance) pay rate increases since 2002. He served the duration of his last enlistment plus some months beyond his enlistment period. His last unit was in. He was regularly ordered on per diem to Camp Bullis to perform his work and was, in fact, held over past his normal discharge date. He was not afforded counseling as to the financial impact of not correcting some administrative action. Most importantly, his last NCO Evaluation Report was to standard or above. He passed his Army Physical Fitness Test each and every year (22 years). His only correspondence from his unit in the last several months was my per diem orders and the discharge order of 5 November 2002. 3. Review of the applicant's service records shows: a. He was born in. He served in the Regular Army from May 1980 to May 1984. He enlisted in the Army National Guard on 22 March 1985. b. He served through multiple reenlistments in a variety of assignments, in the U.S. Army Reserve as well as the Army National Guard, as a staff sergeant (SSG)/E-6. c. On 25 April 2001, Headquarters, U.S. Army Reserve Command, St. Louis issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). d. On 5 November 2002, Headquarters, 90th Regional Readiness Command published Orders 02-309-00048 honorably discharging him from the USAR effective 5 November 2002, in accordance with Army Regulation (AR) 135-178 (U.S. Army Reserve Enlisted Administrative Separations). e. Before turning age 60, he applied for retired pay at age 60. f. On 24 February 2022, the U.S. Army Human Resources Command published Orders C02-291324 placing him on the retired list effective g. His DA Form 5016 (Chronological Statement of Retirement Points) shows he completed AHRC Form 249-E shows he completed 20 years, 5 months, and 22 days of qualifying service for non-regular retirement. h. There is no evidence in his records and he provides none to show he requested to transfer to the Retired Reserve back in 2002. He is eligible to receive retirement pay without being assigned to the Retired Reserve but he did not request to be transferred to the Retired Reserve when he received the discharge order in 2002. 4. An advisory opinion as received from the U.S. Army Human Resources Command on 20 April 2022. The advisory official did not address the applicant's issue. Rather, the advisory official stated the applicant's current organization had been corrected to show Army of the United States (Retired List) effective 28 February 2022. His retirement order was enclosed. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional comments/rebuttal. He did not respond. 6. By regulation (AR 140-10), which sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers, chapter 7 relates to the removal of Soldiers from an active status and states in pertinent 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. BOARD DISCUSSION: After reviewing the application, supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Human Resources Command advisory opinion, the Board concurred with the advising official finding there is no evidence in his records and he provides none to show he requested to transfer to the Retired Reserve back in 2002. He is eligible to receive retirement pay without being assigned to the Retired Reserve, but he did not request to be transferred to the Retired Reserve when he received the discharge order in 2002. Based on this the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s 2002 discharge status. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 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. 2. Army Regulation 140-10 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 in pertinent 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015161 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1