RECORD OF PROCEEDINGS


      IN THE CASE OF:  .


      BOARD DATE:            15 April 2004
      DOCKET NUMBER:   AR2004102968


      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. Victoria A. Donaldson        |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. John P. Infante               |     |Member               |
|     |Ms. Regan K. Smith                |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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's requests are provided by counsel in a separate
memorandum.

2.  The applicant states that counsel will provide the particulars of the
error and injustice in a separate memorandum.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's military records be
corrected by amending his "mandatory retirement date (MRD)" [correctly
known as mandatory removal date (MRD)] to be 31 July 2004.

2.  Counsel states that the applicant is presently on a list of colonels
who have been certified for promotion to brigadier general (BG) in the Army
National Guard.

3.  Counsel asserts that the applicant's eligibility for promotion to BG
expires upon reaching his MRD.  He argues that the applicant would have
remained eligible for promotion with a MRD of 31 July 2004, if the
applicant's records did not contain an erroneous period of military
service.

4.  The brief provided by the applicant's counsel provides a historical
review of the applicant's military service which shows the applicant was
commissioned on 7 June 1972 as a second lieutenant in the U.S. Army upon
his graduation from the U.S. Military Academy.  The brief continues that
the applicant was discharged on 18 October 1977 after completing his five-
year active duty obligation and that, at time of his discharge, he no
longer had a military service relationship.

5.  Counsel contends the applicant entered the MAARNG on 28 December 1979
and that, for the preceding 2 years, 1 month and 10 days, he had no
military service affiliation or duties.

6.  The applicant's counsel argues that the National Guard Bureau (NGB)
considered this matter and refused to make the necessary corrections to the
applicant's records.  Counsel states that the NGB rationale for their
decision relates to backdated documents and a document allegedly signed by
the applicant a year after his discharge.

7.  Counsel contends that the applicant was unaware of any documents that
would have required him to maintain a military service relationship upon
discharge.


8.  Counsel states that NGB acknowledged that the agreement to serve in the
Ready Reserve was dated November 1978, which was a full year after the
applicant was discharged.  Counsel further states that the applicant denies
executing the service agreement.

9.  Counsel states that, at the time of the applicant's resignation, he had
accepted a position at a civilian company and his new employment precluded
any military training time.  Counsel further states that the applicant did
not seek or accept any reserve component affiliation.

10.  Counsel contends that the only explanation for the "erroneous and
forged" documents is that the applicant's original application for
discharge was lost and that a second one was hurriedly prepared so that he
could meet his civilian employment opportunity.

11.  Counsel states that NGB decisions acknowledge inconsistency between
the applicant's DD Form 214 (Report Of Separation From Active Duty) and his
other records.  Counsel contends that NGB's reliance on a "fabricated"
document in contravention of an officially prepared record of events cannot
withstand scrutiny.

12.  Counsel concludes that, notwithstanding the NGB determination that the
applicant is presently beyond his MRD, the applicant is currently serving
in an active duty status supporting the Army "Secretarial" [sic
Secretariat] in a sensitive position involving the continued use of an
environmentally impaired training area.

13.  Counsel provides a two-page brief; a copy of the Senate Confirmation
Announcement Number GO-02-007; a 26 January 2001, memorandum for the Chief,
NGB, nominating the applicant to BG; a 9 September 2003, memorandum with
subject: Mandatory Removal Date; a copy of the applicant's DD Form 214
(Report of Separation From Active Duty), with an effective date of 18
October 1977; Department of the Army Orders Number 194-39; a copy of a 30
September 1977, 1st endorsement from the Headquarters, U.S. Army Military
District of Washington; a 7 October 2003, memorandum for the Deputy Chief
of Staff for Personnel for the Massachusetts Army National Guard (MAARNG);
a 10 October 1979, Ready Reserve Agreement; and a copy of a 21 January
2004, email.

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant was commissioned on 7 June 1972 as a
second lieutenant in the U.S. Army upon his graduation from the U.S.
Military Academy.  The applicant was discharged on 18 October 1977 after
completing his five-year active duty obligation resulting from attendance
at West Point.


2.  On 5 October 1977, the Chief of the Separations Section of the Office
of the Adjutant General of the Army (TAGO) notified the Commander of the
U.S. Army Military District of Washington of the approval of the
applicant's unqualified resignation.  This memorandum stated that an Oath
of Office for Reserve Appointment was enclosed and that it was to be
executed at the time of discharge and forwarded to the Commander, US Army
Reserve Components Personnel and Administration Center, St. Louis,
Missouri.

3.  A Department of The Army, Reserve Components Personnel and
Administration Center letter, dated 5 October 1977, shows that the
applicant was appointed a Reserve commissioned officer of the Army
effective 18 October 1977, the date of his acceptance, and that this
appointment was for an indefinite term.

4.  Paragraph 6 of this 5 October 1977 letter states:  "Oath of office, as
mentioned in paragraph 3, has been withdrawn and is being forwarded under
separate cover with resignation instructions from Separations Division,
TAGO."

5.  The following note is appended to this 5 October 1977 letter:  "Indiv
may not normally resign his Res status til compl of a total of 6 yrs svc"
[Individual may not normally resign his Reserve status until completion of
a total of 6 years service].

6.  The applicant's personnel service records contain a DA Form 71 (Oath of
Officer-Military Personnel) authenticated by the applicant which shows that
he executed an oath of office as a reserve commissioned officer in the
grade of captain on 18 October 1977.

7.  Reserve Components Personnel and Administration Center Orders, dated
28 December 1977, assigned the applicant to the United States Army Reserve
Control Group (USAR) Reinforcement, effective 19 October 1977.

8.  The applicant's records contain a DA Form 3726 (Ready Reserve Service
Agreement), dated November 1978, which notified the applicant that he was
approaching the end of his statutory Ready Reserve service obligation or
contractual agreement.  This form also notified the applicant that he was
eligible to remain in the Ready Reserves for a period of not less than one
year commencing on 2 May 1979.

9.  The applicant signed the DA Form 3726 on 10 October 1979 indicating
that he agreed to remain in the Ready Reserve until mandatory removal.
This form also contained the handwritten entry "EXT=000606 (MRD [Mandatory
Removal Date])."


10.  The applicant's records contain a NGB Form 62 (Application for Federal
Recognition as an Army National Guard Office or Warrant Officer and
Appointment as a Reserve Commissioned Officer or Warrant Officer of the
Army in the Army National Guard of the United States), dated 11 November
1979.  In this application, the applicant requested Federal Recognition in
the MAARNG.

11.  Section 2 of the application for Federal Recognition states that the
information contained within this section was submitted by the applicant
and correct to the best of his knowledge.

      a.  Item 2m of the application for Federal Recognition asked the
applicant if he was "at present a member of any component of the Armed
Forces?"  Item 2m of the NGB Form 62 contains the entry "Yes CPT USAR
(Reserve)."

      b.  Item 2t of the application for Federal Recognition shows on page
"(3)" that the applicant had continuous military service from 18 October
1977 through "Present" in the USAR.  Page (3) of this application is signed
in the applicant's own hand and is dated 11 November 1979.

12.  Department of the Army and Air Force, National Guard Bureau Orders
Number 26 AR, dated 6 February 1980, awarded the applicant permanent
Federal Recognition effective 30 November 1979.  These orders show the
purpose of the orders were "Transfer From the USAR".

13.  Department of The Army, Reserve Components Personnel and
Administration Center Orders Number 04-116019, dated 16 April 1980,
reassigned the applicant from the USAR Control Group Standby to the MAARNG
with an effective date of 29 November 1979.

14.  The applicant's service personnel records contain a page from his
Officer Record Brief which shows under section VII (Current and Previous
Assignments) that for the period 18 October 1977 through 30 November 1979
the applicant was assigned to the USAR Control Group (Standby).

15.  The applicant's official military personnel records contain an Army
National Guard Retirement Points History Statement, prepared on 7 September
2003, which shows that the applicant was assigned to the USAR Control Group
during the period 19 October 1977 through 29 November 1979.

16.  A 7 October 2003 memorandum from the Chief of Personnel Policy and
Readiness of the Army National Guard advised the Deputy Chief of Staff for
Personnel of the MAARNG that the request to adjust the applicant's MRD from
31 August 2002 to 3 August 2004 could not be favorably considered.


17.  The Chief of Personnel Policy and Readiness of the Army National Guard
pointed out that the applicant was commissioned on 6 June 1972 from the
United States Military Academy as a Regular Army officer and that he
resigned his Regular Army commission on 18 October 1977.  The NGB
memorandum further stated that the applicant was commissioned as a USAR
officer on 19 October 1977 and assigned to the USAR Control Group Standby.

18.  The NGB memorandum acknowledged that a DD Form 214 was located in the
applicant's PERMS [Permanent Electronic Records Management System] file
which discharged him instead of transferring him to the USAR Control Group.
 However, the NGB memorandum points out that there are other documents in
the applicant's records which show that he was placed in the USAR Control
Group Reinforcement, specifically a 28 December 1977 order which assigned
him to the USAR Control Group effective 19 October 1977 and indicated that
he was not subject to training requirements and a November 1978 Ready
Reserve Service Agreement indicating that the applicant agreed to remain in
the Ready Reserve until he reached his MRD.  NGB noted that this form was
dated November 1978 and was signed and dated by the applicant on 10 October
1979 which was just prior to his appointment in the MAARNG.

19.  The NGB memorandum concluded that, based on the documents available in
the applicant's records, there is no indication of a break in military
service during the period in question.

20.  The Chief of Personnel Policy and Readiness concluded that the
applicant was placed in the USAR Control Group Reinforcement, that he
served in this status from 18 October 1977 to 11 November 1979, and that he
acknowledged these facts by his own signature.

21.  On 21 January 2004, the applicant requested by e-mail that NGB
personnel explain why his Certificate of Eligibility for promotion to BG
was considered null and void upon reaching his MRD.

22.  An official of the NGB General Officer Management Office (GOMO)
replied to the applicant's e-mail on 21 January 2004.  The reply
essentially stated that applicant's Certificate of Eligibility expired when
he reached his MRD and that this expired Certificate of Eligibility could
not be executed for promotion to BG.

23.  The NGB GOMO official further stated that according to their records
the applicant should have been separated in June 2002.  The NGB GOMO
official advised the applicant that his only recourse was for the state
Adjutant General to request the applicant be appointed as the Assistant
Adjutant General of the MAARNG.

24.  The NGB GOMO official also advised the applicant that the state
Adjutant General would have to request that the Secretary of the Army
promote the applicant based on that fact that he was " indispensable."
Further, if the Secretary of the Army approved the exception, then the
applicant would be "boarded" in a retired status, reinstated as a BG, and,
upon Senate confirmation, would be Federally recognized as a BG.

25.  By memorandum dated 6 February 2004, the staff of the ABCMR requested
that NGB officials review the available records and the application and
provide an advisory opinion.

26.  By memorandum dated 10 February 2004, the Chief of Personnel Policy
and Readiness of NGB provided a two-page advisory opinion which recommended
denial of the applicant's request to have his military records corrected to
reflect his MRD as 31 July 2004.

27.  The NGB opinion stated that the applicant was commissioned on 7 June
1972 as a Regular Army officer which was the start of his active
commissioned service.  NGB further stated that the applicant was discharged
from the Army on 18 October 1977 and that, on 5 October 1977, he received
appointment as a Reserve commissioned officer with an effective date of
19 October 1977.

28.  The NGB opinion also stated that the applicant's reserve appointment
required that the applicant keep the commanding officer of the USAR Control
Group Reinforcement notified of his current address and that in November
1978, the applicant was mailed a Ready Reserve Service Agreement at his new
address in Norton, Massachusetts.

29.  The NGB opinion noted the applicant acknowledged that he wanted to
continue to serve in the Ready Reserve and that he checked the block
stating that he agreed to remain in the Ready Reserve until he reached his
MRD on 6 June 2000 based on 28 years of commissioned service.  The opinion
also noted that the applicant signed the Ready Reserve Service Agreement on
10 October 1979.

30.  The NGB opinion stated that the applicant completed an application for
Federal Recognition on 11 November 1979 and that he indicated that he was
in the USAR from 18 October 1977 until the "present." [This document is
dated 11 November 1979]  The opinion further showed that the applicant was
granted Federal Recognition on 6 February 1980, with an effective date of
30 November 1979 and that the Federal Recognition orders transferred him to
the MAARNG from the USAR on that date.


31.  The NGB opinion continues that the applicant was promoted to colonel
on 1 October 1999; therefore, in accordance with Title 10, United States
Code, section 14507(b), the applicant must be transferred to the Retired
Reserve upon completion of 30 years of commissioned service.

32.  The NGB opinion also stated that the applicant's Retirement Points
History Statement, located in the applicant's official military personnel
file, did not show a civilian break in service and that the Retirement
Points History Statement was consistent with all of the orders in the
applicant's military personnel records.
33.  The NGB opinion also stated that the applicant was confirmed by the
Senate for a BG Certificate of Eligibility on 21 March 2002 and that this
Certificate of Eligibility expired on 30 June 2002, the applicant's MRD.
Based on the expiration of the Certificate of Eligibility, NGB opined that
the applicant is no longer eligible for promotion to BG.

34.  The NGB opinion also noted that, with a MRD of 30 June 2002, the
applicant should have been separated or transferred to the Retired Reserve
as of June 2002.

35.  On 12 February 2004, the applicant's counsel was forwarded a copy of
the NGB advisory opinion for review and comment.  By letter dated 13
February 2004, the applicant's counsel provided comments in rebuttal and a
copy of an Army National Guard Retirement Points History Statement,
prepared on 20 September 1994, and a copy of an Army National Guard Current
Annual Statement, prepared on 15 December 2000.

36.  In his 13 February 2004 letter, the applicant's counsel stated that
the NGB opinion shed no new light on this matter and reflects that the NGB
continues to speculate on certain matters in order to bolster an
indefensible position.  Counsel continues that the only documentary
evidence that the NGB offers is a form executed on 10 October 1979 which is
used as a basis to show that the applicant joined the reserves two years
earlier.

37.  The applicant's counsel stated that applicant did not join the
reserves and that a retroactive conclusion reached by the NGB is neither
logical nor supported by facts.

38.  In summary, counsel contended that the applicant did not execute a
document which stated that he would maintain a reserve affiliation and the
applicant did not have continuous military service from the time he left
active duty until the time that he joined the MAARNG.



39.  Counsel concluded that the applicant did not have a military service
obligation, that he did not voluntarily execute a document which would have
maintained a service connection, and that he did not gain any benefit from
Reserve service including membership points.

40.  The applicant's counsel provided with his rebuttal, an Army National
Guard Annual Statement, prepared on 15 December 2000, which shows that the
applicant had a civilian break in service during the period 19 October 1977
through 29 November 1979.  This Army National Guard Annual Statement is not
contained in the applicant's official military personnel records.

41.  Title 10, United States Code, Section 14507 states the statutory
provision for maximum years of service and provides that an officer in the
Reserve grade of lieutenant colonel who is not on a list of officers
recommended for promotion to the next higher grade shall be transferred to
the Retired Reserve or discharged on the first day of the month after the
month in which the officer completes 28 years of commissioned service.

42.  Title 10, United States Code, Section 14507 states the statutory
provision for maximum years of service and provides that an officer in the
Reserve grade of colonel who is not on a list of officers recommended for
promotion to the next higher grade shall be transferred to the Retired
Reserve or discharged on the first day of the month after the month in
which the officer completes 30 years of commissioned service.

43.  Title 32, United States Code, Section 307 states in pertinent part,
that if a board of officers finds a person qualified, the Chief of the
National Guard Bureau may issue him a Certificate of Eligibility for
Federal Recognition for the office for which he was found qualified.

44.  National Guard Regulation (Army Regulation) (NGR(AR)) 600-100
(Commissioned Officers-Federal Recognition and Related Personnel Actions)
states in paragraph 2-12a that the purpose of the Certificate of
Eligibility is to examine Army National Guard officers, for whom there are
no positions available, to determine their fitness for future appointments
or promotion.

45.  NGR(AR) 600-100 states in paragraph 8-13d that the Certificate of
Eligibility is effective for two years from the date of issue unless
otherwise prohibited.  The officer must remain otherwise qualified.  The
Certificate of Eligibility becomes invalid when the officer reaches his
mandatory removal date unless administratively retained.




DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was commissioned on 7 June 1972 upon
his graduation from the United States Military Academy.  The applicant's
commissioning date is the start date of his active commissioned service.

2.  The applicant's service personnel records show that he resigned from
the Regular Army on 18 October 1977 after serving 5 years, 4 months and 12
days.

3.  At the time of the applicant's separation from the Regular Army, the
applicant had a military service obligation of six years.   The applicant's
Regular Army service satisfied 5 years, 4 months and 12 days of that
obligation.  Therefore, he had a remaining service obligation of 7 months
and 18 days.

4.  The applicant's service personnel records contain a Department of the
Army, Reserve Components Personnel and Administration memorandum, dated
5 October 1977, which stated that the applicant could not resign his
Reserve status until completion of his six year service obligation.

5.  Records show that, on 18 October 1977, the applicant accepted an
indefinite appointment in the USAR effective on 19 October 1977 and was
transferred from the Regular Army to the USAR Control Group Reinforcement
to complete his military service obligation.

6.  Records further show that the applicant executed an Oath of Office in
the United States Army Reserve on 18 October 1977.

7.  Counsel contends that the applicant did not sign the Ready Reserve
Service Agreement in November 1978 and that he did not have a military
affiliation after 18 October 1977.  However, there is documentary evidence
in the applicant's official military records which show that he executed a
service agreement which obligated him to indefinite period of service in
the USAR.

8.  Counsel also contends that the documents relied upon to show the
applicant's continued service in the USAR from 18 October 1977 to 29
November 1979 are "erroneous" and "forged."

9.  Contrary to this contention, there are orders assigning the applicant
to the USAR Control Group effective 18 October 1977 and there is no
evidence these orders were in error or falsified.

10.  The applicant signed an application for Federal Recognition in MAARNG,
which states that, at the time of application, he was serving as a captain
in the USAR and that he had been assigned to the USAR Control Group
Reinforcement for the period 19 October 1977 through 11 November 1979.
There is no evidence that this document was "erroneous or forged."

11.  NGB Federal Recognition Orders, dated 6 February 1980, transferred the
applicant from the USAR to the MAARNG.  There is no evidence these orders
were in error or falsified.

12.  The Army National Guard Retirement Points History Statement, prepared
on 7 September 2003, shows the applicant served continuously in a
commissioned status from 7 June 1972 through 7 September 2003.  This
retirement points statement also shows that the applicant was assigned to
the USAR Control Group during the period 19 October 1977 through 29
November 1979 and that he earned no retirement points during the period 19
October 1977 through 29 November 1979.  There is no evidence that this
document was "fabricated" or otherwise altered.

13.  Counsel argues that the applicant's MRD should be 31 July 2004 based
on a break in service between 19 October 1977 and 28 November 1979.
Contrary to this contention, military records show the applicant has served
continuously in a commissioned status from the date of his commissioning on
7 June 1972.

14.  Records further show that the applicant was promoted to colonel on
1 October 1999.  Title 10, United States Code, Section 14507, provides that
an officer in the grade of colonel is removed from the active status list
for years of service on the last day of the month in which he or she
completes 30 years of commissioned service.  Therefore, based on law, the
applicant's MRD was 30 June 2002.

15.  In view of the foregoing, the applicant should have been removed from
an active Reserve status and transferred to the Retired Reserve effective
30 June 2002.  There is no statutory or regulatory authority to extend the
applicant's MRD to 31 July 2004.

16.  The applicant's Certificate of Eligibility for promotion to BG was
confirmed by the Senate on 21 March 2002.  By operation of regulation and
law that certificate expired on the date the applicant reached his MRD, 30
June 2002.  In the absence of a statutory or regulatory authority to extend
the applicant's MRD, the Certificate of Eligibility became null and void on
30 June 2002 and cannot now be used as a basis for promotion of the
applicant to BG.

17.  Based on all of the foregoing, the preponderance of evidence
conclusively shows that there is no statutory or regulatory basis for
extending the applicant's MRD beyond 30 June 2002; that the applicant's
Certificate of Eligibility for promotion to BG expired effective 30 June
2002 and is no longer valid; and that the applicant is not entitled to
promotion based on that expired Certificate of Eligibility.

BOARD VOTE:

________  ________  ________ GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JNS___  __RKS__  _JPI_ ___  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 for correction of the
records of the individual concerned.





                  _John N. Slone______
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004102698                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040415                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |