RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR20040002330


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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 L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of those portions of his earlier
request pertaining to adjusting his mandatory removal date (MRD) to his age
of 60 and returning him to a Ready Reserve status.

2.  The applicant states that, with his MRD not being adjusted, he will not
be able to serve past 1 July 2005.  That leaves him with approximately 14
months (as of the date of his request for reconsideration) to be recalled
from the volunteer mobilization list and have his final chance to serve his
country.  The 353d Civil Affairs Command recruited him because they wanted
him to serve in a position of Public Safety Officer.  He is the primary
instructor for Port Facility Security at the U. S. Merchant Marine Academy.
 With the number of critical ports being attacked in Iraq and other Middle
Eastern cities, he knows he can help with the operational plans to
interdict these new threats.  The only way he will ever be able to serve is
if someone calls his name off the volunteer mobilization list, as he has
been told that he could not be voluntarily recalled because he is
collecting retired pay.

3.  The applicant provides a 24 January 2004 and a 23 April 2004 letter to
the Army Chief of Staff.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003093661 on    1 April 2004.

2.  The applicant was commissioned a second lieutenant in the Army National
Guard (ARNG) on 14 June 1977.  While serving on active duty in an Active
Guard Reserve (AGR) status, he was separated from the ARNG, separated from
active duty by reason of voluntary early retirement effective 30 June 1995
in the rank of Major, and transferred to the Retired Reserve.

3.  The applicant applied to the ABCMR several times seeking various forms
of relief.  One application resulted in his being reconsidered for
promotion to
Lieutenant Colonel (LTC) by a standby advisory board (STAB).  One STAB
nonselected him for promotion under 1993 criteria.  On 26 June 2002, a
second STAB selected him for promotion to LTC under 1994 criteria.  On 17
January 2003, the Office of Promotions, Reserve Components, U. S. Total
Army Personnel Command notified the New York ARNG of his selection for LTC
and that his transfer to the Retired Reserve should be voided.

4.  The National Guard Bureau responded concerning the applicant's
eligibility to return to a Ready Reserve status by stating that, since he
was voluntarily retired under the Temporary Early Retirement Authority
(TERA), he was not entitled to reinstatement.  The administrative
procedures established for TERA included the provision that an approved
application was a binding document and could not be withdrawn and that a
promotion would not take place once an application was approved.

5.  The applicant applied to the ABCMR (in docket number AR2003093661) for,
in addition to his current request, termination of his retirement under the
TERA with his return to a Ready Reserve status on the following day and
that he be promoted to LTC effective the date of his return to a Ready
Reserve status.

6.  The ABCMR, in docket number AR2003093661, noted that the applicant's
original first nonselection for promotion to LTC precipitated his TERA
application. The ABCMR noted that, when an error or injustice occurs, the
ABCMR attempts to fashion or provide the most equitable relief available
but it is not always possible to make a person whole based on the available
remedies.  Therefore, that ABCMR panel recommended his records be corrected
by revoking his        30 June 1995 separation from an AGR and ARNG status,
and by showing he was promoted to LTC effective 1 July 1995.  That ABCMR
panel also recommended that his records be further corrected by showing he
was separated from his AGR status and from the ARNG as an LTC and
transferred to the Retired Reserve by reason of completing the required
service for retirement on the date he would have achieved 20 years of
active Federal service.

7.  The ABCMR panel, in docket number AR2003093661, recommended denial of
so much of the applicant's request that pertained to adjusting his MRD to
allow him to serve until age 60 and returning him to the Ready Reserve.

8.  The applicant will complete 28 years of commissioned service on 13 June
2005.

9.  Title 10, U. S. Code, section 14507 states that Reserve Component
officers in the grade of LTC will be removed from an active status on the
first day of the month after the month in which the officer completes 28
years of commissioned service.

10.  Title 10, U. S. Code, section 10154(2) states that a member of the
Reserve, who has been transferred to the Retired Reserve upon his or her
request, retains his or her status as a Reserve.  This means that all time
of a commissioned officer in the Retired Reserve counts as commissioned
service and counts towards determining the member's MRD.

11.  Army Regulation 601-10 (Management and Mobilization of Retired
Soldiers of the Army), paragraph 2-3 states that retired military personnel
are identified by categories and will be ordered to active duty or
mobilized based on service needs.  The three categories are:  Category I --
nondisability retired soldiers under age 60 and have been retired less than
5 years; Category II -- retired soldiers who have the same qualifications
as those in Category I but have been retired for 5 years or more; and
Category III -- retired soldiers, including those retired for disability,
who are not qualified for placement in either Category I or II.

12.  Army Regulation 601-10, paragraph 4-14b states that, subject to the
provisions of applicable Army regulations, a retired soldier may be ordered
to active duty with his or her consent by the Secretary of the Army or his
designated representative at any time.  Figure 4-2 outlines the normal
chain of an active duty request for a retired member recalled to active
duty (voluntary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's MRD is established by law.  The ABCMR cannot adjust his
MRD to his age of 60 in contravention of that law.  Unfortunately, because
of his original status (assigned to the Retired Reserve as of June 1995)
and because of his status as corrected by the ABCMR (remaining in the ARNG
and assigned to the Retired Reserve as of the date he attained 20 years of
active Federal service), all of his commissioned time counts towards
determining when he will complete 28 years of commissioned service.

2.  The needs of the Army, rather than a member's retired pay status, is
the determinant factor in whether that member may or should be recalled to
active duty.  It would not be equitable for the ABCMR to mandate the
applicant's recall to active duty.  The Army has appropriate procedures for
requesting recall to active duty that would give the Army the opportunity
to review his qualifications against the needs of the Army and determine if
he can and should be recalled to active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __jed___  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003093661 dated 1 April 2004.




            ___Mark D. Manning____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040002330                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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