MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2002082171

         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
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Marla J. Troup		Member
Mr. Herbert O. Fry		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 mandatory removal date (MRD) be changed from 30 April 2002 to 7 May 2004.

APPLICANT STATES: In a statement to the Army Reserve Command (USARC), that he requested to resign his Army National Guard (ARNG) commission in 1980 and requested reinstatement in 1982. When he returned to his unit he saw the orders that transferred him in and out of the Inactive National Guard (ING) but he was told that this was the proper procedure. He was a pilot and not familiar with personnel issues. He was told several times that the transfer orders were probably correct and he believed his break in service had been taken care of. In 1997, as a member of the Army Reserve, he was checking on his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) when he was told that he had no records and they were probably destroyed in the fire in
St. Louis, Missouri. His records were reestablished from the records he had maintained. He recently received copies of letters that were used to transfer him to and from the ING. He did not submit either of these letters; one of which is not signed and the other is a poor forgery of his signature. He does not know why his request for resignation was never honored since he had a very detailed discussion with his unit commander about his resignation. It should be corrected now to allow him to serve an additional 2 years.

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

He was appointed a second lieutenant in the Army National Guard (ARNG) and as a Reserve of the Army effective 1 May 1972. He was promoted to first lieutenant effective 30 April 1975 and captain effective 11 January 1978. Since the fire at the National Archives and Records Administration occurred in 1973 and involved the storage area for retired files it is doubtful that the applicant's records were lost or destroyed as a result of that fire.

The applicant provides a copy of a memorandum, dated 9 September 1980, and states that this was the document he submitted to resign his position in the ARNG and resign his Reserve commission based on employment conflicts. He also submits an unsigned memorandum, dated 26 September 1980, and states that the state personnel office recently provided it; that he had never seen it; and that it was a fabrication. The memorandum states that he was requesting transfer to the Inactive National Guard (ING) because of work conflicts. He never received any discharge documents but believed it was because he moved without providing a new address. It is noted that the format he presents to resign his commission is not in the format required by the regulation.




The applicant provides a copy of a memorandum, dated 24 September 1982, and states that this was the document he submitted to his former unit commander to reinstate his commission based on resolution of his employment conflicts. He also submits a signed memorandum to his former unit commander, dated 15 October 1982, and states that the state personnel office recently provided it, that he had never seen it, and that his signature was a forgery.

The memorandum states that he was requesting transfer from the ING back to an active ARNG status because of resolution of his work conflicts. There is no mention if the endorsement signed by his former unit commander is also a forgery. None of the documents mentioned above are in the available Official Military Personnel File (OMPF).

His OMPF contains a copy of a National Guard Bureau (NGB) order, dated 16 December 1980, and shows that the applicant was transferred from his ARNG unit to the ING effective 24 October 1980. His OMPF also contains a copy of a NGB order, dated 26 November 1982, and shows that he was transferred from the ING back to his former ARNG unit. These documents also show that they were placed on the microfiche copy of his OMPF on 11 January and 12 April 1984 respectively.

Effective 6 August 1985 he was separated from the ARNG and transferred to the Army Reserve (USAR). The reason for this transfer is not in the available record nor is a NGB 22 (Report of Separation and Record of Service) for this period of service.

Effective 17 January 1987, he was promoted to major in the USAR. Effective 28 September 1987, he was reappointed in the ARNG. On 8 February 1994, the applicant was notified that he had been selected for promotion to lieutenant colonel. He was provided the options to accept his promotion with continued assignment to the ARNG, to decline his promotion with continued assignment to the ARNG, or accept his promotion with concurrent assignment to the USAR. He elected to decline his promotion. Effective 13 February 1995, he was separated from the ARNG and assigned to the USAR.

His NGB 22 for this period of service shows in the remarks block that he had ING service from 24 October 1980 to 31 October 1982.

Effective 14 February 1995, he was promoted to lieutenant colonel in the USAR. He was not selected for promotion to colonel by the 1999 and 2000 Colonel, Reserve Component Selection Boards. Effective 8 March 2002, he was promoted to colonel in the USAR.


Based on his commissioning date of 1 May 1972, with no break in service, his MRD, based on 30 years commissioned service for the rank of colonel, was 1 June 2002. His records show that he was transferred in the rank of colonel to the Retired Reserve effective 10 December 2002. Because he was not removed from an active status for over 185 days from his date of promotion, he was authorized retirement in the rank of colonel. He was credited with 25 years of qualifying service for Reserve retirement.

The applicant provides a memorandum from the Director, Military Personnel, Mississippi National Guard. The memorandum notes that the applicant clearly requested to resign his commission but was transferred to the ING. An administrative error was made and the applicant should not be penalized. The applicant also provides a memorandum from the commander of his former unit. The commander notes that the applicant has presented documents to show that his MRD is not correct and should be corrected. The commander believes that he would not have been selected for colonel if the selection board had believed his MRD was in 2002. As the G-3 of the division, he is an important asset.

Title 10, U. S. Code, section 14507 (b) provides the basis for removal from an active status of Reserve colonels. It provides that a colonel who is not on a list of officers recommended for promotion to the next higher grade shall be removed from an active status the first day of the month after the month in which the officer completes 30 years commissioned service. It was noted earlier that the applicant was not removed for over 7 months after the month in which he completed 30 years commissioned service.

Army Regulation (AR) 135-175 and National Guard Regulation (NGR) 635-100 provide the policy for ARNG officer separations, including unqualified resignations. The regulations state that resignations will be submitted in the format prescribed. NGR 635-100 further states that the termination of an officer's appointment is a function of the State and the withdrawal of Federal Recognition is a function of NGB. An NGB 22 will be prepared for each officer being separated from the ARNG. AR 135-175 states that the authority to take final action to discharge an officer from his Reserve of the Army appointment is the Army Reserve Personnel Command.

NGR 614-1 provides the policy for the ING. The ING is an administrative category that allows ARNG soldiers to remain in the ARNG who are unable to participate due to change of residency or incompatibility with civilian employment. Longevity credit for basic pay purposes accrues as a result of their Reserve of the Army status. The State Adjutant General may transfer any officer back to an active status provided the officer is qualified, can actively participate, and there is an authorized position vacancy for the grade of the officer.

AR 135-100 and NGR 600-100 provide the policy for appointment of commissioned officers in the ARNG and USAR. The regulations states that officers are appointed in the ARNG by the States and Federally recognized by the NGB. Federal Recognition results in an appointment in the Reserve of the Army. The appointment process requires the submission of numerous forms, a medical examination completed within the past 24 months, and the applicant's prior service records obtained from the National Archives and Records Administration (NARA).

The National Guard Bureau has advised in similar cases that the appointment process, from the beginning of the application process to date of appointment, varies in time depending on obtaining all the required documentation, but in most cases not less than 5 months if handled expeditiously by the State and records received from NARA in a timely fashion.

If the applicant had been required to follow the normal procedures of applying for reappointment of his commissioned officer status it is unlikely that he would have been returned to an active status in only 5 weeks. It is highly likely that the entire process would not have been concluded in less than 5 to 6 months. Based on the minimum reasonable estimate that he would have received all of the forms to complete from his unit within 2 weeks of his initial request for reinstatement, and that he received his appointment at the end of 5 months, the applicant's adjusted date of rank as captain, approximately 24 May 1980, and his adjusted promotion eligibility date (PED) for major of 23 May 1987, would have precluded his promotion to major on 17 January 1987. The earliest he could have been considered was the promotion board that convened in April 1988. This later promotion to major could have also impacted all of his subsequent promotions.

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. Notwithstanding that the applicant has presented evidence that he requested to resign his ARNG appointment and Reserve of the Army commission on 9 September 1980, there is clear evidence that this was not accomplished or ever approved by proper authorities. When the applicant did not receive separation documents following his request to resign his commission he should have know that he had not been discharged.

2. After his reassignment back to his original ARNG unit, without submitting any documentation for appointment or Federal Recognition, he and his commander knew or should have known that his status had been other than discharged prior to his request to return to an active status. The applicant acknowledges that shortly after returning to his unit in 1982, he saw his assignment and reassignment orders to and from the ING. This was clearly still a commissioned officer status and the appropriate governing regulations would have been readily available to the applicant and unit commander. Additionally, the ING reassignment orders have been a part of his official records since 1984.

3. Since his promotion to major in January 1987, he has enjoyed the fruits of this early promotion and the higher pay attributed to his additional pay for longevity while in the ING, which he would not have received had his commission been terminated and he had to reapply for appointment.

4. 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.

5. 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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fe___ ___mt___ ___hf___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082171
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	102.06
2.	102.09
3.	135.05
4.
5.
6.