MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 July 2001
         DOCKET NUMBER: AR2001056734

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Hubert O. Fry		Member
Mr. Eric N. Anderson		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his Retirement Eligibility Date be changed from 31 May 2003 to 4 June 2001.

APPLICANT STATES: That his return to active duty as an exception to policy in 1989 was unusual and there was no guidance that accompanied the accession orders that addressed Active Federal Commissioned Service (AFCS), Active Federal Service (AFS), or Active Duty Date of Rank (ADOR) in the accession process. His Computation of Officer Service, DA Form 185, dated 12 September 1990 indicates that time served while assigned to the Central Intelligence Agency (CIA) was credited toward AFS. This form has been a part of his official records for 11 years and is on his microfiche. His understanding has always been that his tour with the CIA would be treated as an assignment. When he entered on duty with the CIA in January 1988, he was in year group (YG) 1982 with an ADOR of 1 July 1985. After completing a 2-year tour with the CIA, he was re-accessed retaining his status in YG 1982 and maintaining his ADOR of 1 July 1985. He believes the basis for retaining both his YG and his ADOR was the result of the CIA tour being treated as a normal assignment. He received no indication that anything was questionable until 5 January 1995 when orders were issued announcing a change in his ADOR. He submitted a rebuttal in which he stated that his understanding of the break in service was that it would be treated like an assignment. No discussion of AFCS/AFS was made. Those orders were rescinded. This decision reaffirmed to him that the CIA tour would be counted as AFS. His Officer Record Brief (ORB) shows his AFS as 245 months yet because his Certificate of Release or Discharge from Active Duty, DD Form 214, does not cover the time served with the CIA, Retirements and Separations Branch, U. S. Total Army Personnel Command (PERSCOM) is unable to accurately document his retirement eligibility. He served with the CIA as a First Lieutenant from June 1983 to March 1985. The duties he performed from January 1988 to January 1990 were almost identical to those he performed as a First Lieutenant, only he served as a GS-13 Branch Chief. This was the logic he used when he requested a “special board” in 1989 to consider his application for active duty. In addition, the CIA has many programs for active duty military including both training and operations. Today the Army offers Lieutenant Colonels and Colonels an opportunity to attend a CIA fellowship in lieu of the Army War College. The documents presented indicate an understanding that his CIA service was to be credited towards his AFS. Supporting evidence is as listed on the enclosure to the DD Form 149.

EVIDENCE OF RECORD: The applicant's military records show:

He entered the Delayed Entry Program on 27 April 1981. He enlisted in the Regular Army on 4 June 1981. He was discharged on 9 November 1981 for the purpose of accepting an appointment and entering active duty as a Second Lieutenant in Military Intelligence (MI) as part of YG 1982. He was assigned to the Intelligence Threat Center, Arlington Hall Station, VA as a Soviet Military Analyst (liaison officer to the CIA for the purpose of working on the land Armaments and Manpower Model) from June 1983 – March 1985. He was promoted to Captain on 1 July 1985. He was released from active duty on 25 January 1988 in the rank of Captain and was assigned to the active Reserve as an Individual Mobilization Augmentee (IMA).

The applicant was employed by the CIA from 19 January 1988 to on or about 5 January 1990. His duties included directing several external research projects to improve the quality of CIA military analysis on developing countries; working closely with analysts in addressing such issues like military modernization, arms transfers, balance-of-forces, and Third World military acquisitions; and promoting inter-agency cooperation by working with the Department of Defense on office automation and sharing analytical tools and techniques developed in the branch.

On 5 September 1989, the applicant applied for active duty. He stated his application should be approved because of the unique skills and training he acquired during seven years of active duty as an MI officer and two years as an MI officer with the CIA. Besides the intelligence skills he acquired through training with both the Army and the CIA, he remained current with his Army skills while serving as an IMA. During his two-year tenure with his unit, he completed phase I of the Company Command Module for MI officers and practiced patrolling techniques and small arms familiarization and maintained a 100 percent average on his correspondence courses. There is nothing in his application to indicate that he would accept active duty only if his CIA tour was counted as AFS.

On 7 November 1989, the applicant was notified that his application for active duty was approved as an exception to policy. There is nothing in this notification to indicate that the Army was granting AFS credit towards his CIA tour. He re-entered active duty on 31 January 1990.

A Computation of Officers’ Service, apparently completed by PERSCOM, dated 12 September 1990 indicates the applicant had continuous active duty from and a basic active service date (BASD) of 4 June 1981.

On 15 January 1992, PERSCOM informed the applicant that a Reduction in Force Board would convene to consider officers in YGs 1978 and 1982. Their records indicated that his file would be reviewed by that board.

Orders 001-003, PERSCOM dated 5 January 1993 adjusted the applicant’s date of rank to 6 July 1987. He rebutted this action. He stated that during his break in service he served as an MI officer with the CIA and simultaneously served with a Reserve unit. His career since his return to active duty was based on a DOR of 1 July 1985, to include his selection for Major, his consideration by a Reduction in Force Board. He never concealed his break in service and his understanding of the break was that it would be treated like an assignment. He even attempted to include it on his ORB but was advised not to. He was assured by PERSCOM that his DOR would not be adjusted based on the similarity of his CIA work to his jobs with the Army. On 16 February 1993, PERSCOM notified the applicant that his DOR was changed back to 1 July 1985 under the provisions of Army Regulation 624-100, chapter 6.

The applicant was promoted to Major on 1 November 1993 and to LTC on 1 August 1998.

The applicant apparently applied for retirement based on a BASD of 4 June 1981. On 20 April 2001, PERSCOM completed another Computation of Officer’s Service. PERSCOM determined that he had continuous service for pay purposes from 27 April 1981 but was credited with only 27 days of active service for the period of his break in service for a BASD of 4 May 1983. He was notified that he would be eligible for a 20-year retirement 3 May 2003.

Army Regulation 624-100, in effect at the time, paragraph 6-6 provided that an other than Regular Army (OTRA) First Lieutenant and above would be placed on the Active Duty List (ADL) in his or her current grade and would have a DOR that preceded the date of placement on the ADL by a period equal to the period the officer spent in an active status in his or her current grade.

Title 10, U. S. Code, section 101(d) defines “active duty” as full-time duty in the active military service of the United States. “Active status” is defined as the status of a member of a reserve component who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve.

PERSCOM defines Basic Year Group (BYG) as that year group that represents the fiscal year in which the officer entered full time active duty as a Second Lieutenant, given that his appointment date to Second Lieutenant and his entry to active duty date fall in the same fiscal year. An officer who enters the service in a grade other than Second Lieutenant will have his BYG determined at the time of entry to active duty, based upon the BYG of the due course continuously serving officer of the same branch, grade and date of rank in the grade to which he is appointed.

Army Regulation 600-8-104, in the section outlining ORB corrections procedures, states that the months AFS is the number of months of full-time active military service computed through the end of the current fiscal year and includes full-time training duty, annual training duty, and attendance while in the Active Military service. Months AFCS is the number of months and days of active Federal service as a commissioned officer in the Army, Navy, Air force, marine corps, and Coast Guard computed through the end of the current fiscal year.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. While the applicant noted his work with the CIA when he applied for active duty, he did not indicate that he would accept active duty only if his CIA tour was counted as AFS. He continued to maintain a separate military status during his break in service by his service in the active Reserve. His notification that his application for active duty was approved as an exception to policy contains no indication that the Army was granting AFS credit towards his CIA tour.

3. There was no need to address the applicant’s AFCS, AFS, ADOR, or BYG in the accession process because those dates are set in accordance with established military regulations or policy. Because he maintained an active Reserve status during his entire break in service, by regulation he was placed on the ADL in his current grade of Captain and retained his original DOR when he re-entered active duty. Because he retained his original DOR, his BYG remained YG 1982.

4. The Board sees no injustice in not crediting the applicant’s time with the CIA as active duty. He was a Captain when he separated in 1988. He states he was performing almost identical work at the CIA that he had performed for them while in the Army as a First Lieutenant. Had he been on active duty during this time he would have been assigned to positions at a greater level of experience and responsibility than First Lieutenant.

5. The Board concludes the circumstances of this case are not equivalent to active duty officers having an opportunity to attend a CIA fellowship in lieu of the Army War College. Those individuals are still Army officers under the control of the Army who can be recalled to their military duties in the event of overriding military requirements. The applicant’s circumstances are more similarly related to a Signal Corps computer expert who performs Training with Industry with IBM while a junior officer, is released from active duty and takes a position with IBM for two years working on military applications, and then requests return to active duty citing his increased experience obtained while working for IBM.

6. By law, only full-time duty in the active military service of the United States can be credited as active duty. The Board cannot determine who prepared the DA Form 185 dated 12 September 1990 or why his CIA service was credited towards his AFS. There does appear to be an error on his ORB in the computation of his AFS and perhaps his AFCS. However, the Board concludes that these administrative errors should not be compounded by allowing the applicant to retire for length of service two years prior to his completion of active duty as defined by law.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE: The U. S. Total Army Personnel Command will be directed to recompute the applicant’s AFS and AFCS and make any corrections as appropriate.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rvo___ __hof___ __ena___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056734
SUFFIX
RECON
DATE BOARDED	20010726
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	136.02
2.
3.
4.
5.
6.