RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 December 2004
      DOCKET NUMBER:   AR2004106642


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Seema E. Salter               |     |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, in effect, an extension of his mandatory
removal date (MRD) of 8 February 2005.

2.  The applicant states, in effect, that he is requesting an extension of
his MRD in order to reach sanctuary and lock-in for a twenty-year immediate
retirement upon completion of 20 years of Active Federal Service (AFS) on
28 February 2007.  He claims that when he initially entered active duty in
the Active Guard Reserve (AGR) program in March 1987, he was under a
management system that allowed you to remain on active duty through the end
of the month following the month you reached your MRD.  He states that he
was informed it would not be a problem to recover the 14 days in order to
reach sanctuary by his AGR program manager at the time he entered the AGR
program and by several AGR program managers throughout the time he has been
on active duty.  He claims that to deny him an extension of his MRD would
be unjust based on the advice and counsel he has received from Army
personnel managers throughout his career and that an extension of his MRD
would not be a problem.

3.  The applicant provides the request for extension of MRD packet he
submitted through channels in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that at the time he submitted his
application to the Board, he was serving as a lieutenant colonel (LTC) on
active duty in the AGR program and was assigned to Headquarters, State Area
Command (STARC), Fort Pickett, Virginia.

2.  On 11 July 2003, the applicant requested an extension of his MRD of
8 February 2005 to 10 April 2005.  He indicated that this MRD extension
would give him 18 years of AFS and place him in the statuary sanctuary that
would ensure his retention through 20 years of active service and allow his
retirement.  He further indicated that under the regulatory guidance in
effect prior to the implementation of the Reserve Officer Personnel
Management Act (ROPMA) in 1996 and based on the guidance he received from
the responsible Human Resources Command personnel officials, that his MRD
extension and his attaining 20 years of AFS for retirement would not be
problem, he decided to remain in the AGR program.

3.  On 11 July 2003, The Adjutant General (TAG) of the State of Virginia
prepared a memorandum supporting the applicant’s MRD extension request.
The TAG indicated that at the time the applicant entered into the AGR
program on 7 March 1988, requests for short-term MRD extensions were not
uncommon and were granted as a matter of routine.

4.  The TAG further indicated that at the time he entered the AGR program,
the applicant was assured by State personnel officials that he would have
no problem having his MRD extended in order to reach his 18 year lock-in
and it was his belief the applicant made the decision to enter the AGR
program in good faith, based on these assurances.  However, he comments
that when the 1996 ROPMA was implemented, MRD extensions became a thing of
the past except for military technicians and certain special branch
officers.  He finally requested that the applicant’s request be given every
possible consideration within the constraints of the law.

5.  The Chief, Personnel Policy and Readiness Division, National Guard
Bureau (NGB) responded to the applicant’s MRD extension request in an
undated memorandum.  He indicated that the applicant’s request had been
forwarded to the Deputy Chief of Staff G-1, Army for consideration and was
returned without action because the governing law, Title 10, United States
Code, Section 12646 (10 USC 12646) does not provide provisions for a
Reserve commissioned officer to be retained in a Full Time National Guard
Duty (FTNGD) status in order to reach the statutory criteria for sanctuary.


6.  10 USC 12646 provides the legal authority for retention of commissioned
officers after completing 18 or more, but less than 20 years of service.
It states, in pertinent part, that Reserve commissioned officers on active
duty who, on the date on which the officer would otherwise be removed from
active status are within two years of qualifying for retirement may, at the
discretion of the Secretary of the Army, be retained on active duty for a
period of not more than two years.  It further states that an officer may
be retained on active duty or full-time National Guard duty under this
provision only if at the end of the period for which he/she is retained the
officer will be qualified for retirement.  The law does not provide for
extension of members who have not yet completed 18 years of service.
7.  Title 10 of the United States Code, section 14507 (10 USC 14507)
provides the legal authority for the removal from the Reserve Active Status
List (RASL) for years of service.  It states, in pertinent part, that
lieutenant colonels will be removed from the RASL on the first day of the
month after the month in which the officer completes 28 years of
commissioned service.

8.  Title 10 of the United States Code, section 14702 (10 USC 14792)
provides the legal authority for retention on RASL of Certain Officers to
Age 60.  It states, in pertinent part, that notwithstanding the provisions
of 10 USC 14507, the Secretary of the Army may, with the officer’s consent,
retain a National Guard of the United States Officer in the grade of major,
lieutenant colonel, colonel or brigadier general who is assigned to a
headquarters or headquarters detachment of the State.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he entered and remained on active duty in an
AGR in good faith based on the advice he received from responsible
personnel officials that he would be allowed to extend his MRD in order to
complete
20 years of AFS in order to reach retirement eligibility was carefully
considered.  However, the evidence of record confirms there is no provision
of law that allows for the extension of a MRD in order to meet statutory
sanctuary protection of
18 years, as is indicated in the NGB response to the applicant.

2.  However, notwithstanding the provisions of 10 USC 14507, The Secretary
of the Army, with the officer’s consent, may retain a National Guard of the
United States Officer in the grade of major, lieutenant colonel, colonel or
brigadier general who is assigned to a headquarters or headquarters
detachment of the State on the RASL under the provisions of 10 USC 14702.

3.  The evidence of record confirms the applicant is an officer serving in
the headquarters of the Virginia Army National Guard and that his MRD
extension is supported by the TAG of the State of Virginia.  This support
would indicate it would be in the best interest of the Army to approve the
applicant’s MRD extension as an exception to policy.

4.  In view of the facts of this case, it would be appropriate and serve
the interest of justice and equity to correct the applicant’s record to
show his MRD extension is approved through 8 February 2006 under the
provisions of 10 USC 14702.
BOARD VOTE:

_FE_____  _PMS __  __SES __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing that an extension of his MRD through 8 February 2006 is approved
under the provisions of 10 USC 14702.




            _      FRED EICHORN__
                    CHAIRPERSON
                                    INDEX

|CASE ID                 |AR2004106642                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/DD                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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