RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 March 2007
      DOCKET NUMBER:  AR20070003930


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Nancy Amos                    |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Roland S. Venable             |     |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, that his records be corrected to
show he declined to be integrated into the Regular Army.

2.  The applicant states he entered active duty in December 2002 for a 3-
year [active duty] commitment.  However, in May 2005 he was affected by
STOP LOSS, and in August 2005 he deployed to Iraq with his unit.  The U. S.
Army Human Resources Command (HRC) has informed him that he is not
authorized Transition Assistance Management Program (TAMP) benefits because
they do not believe he was involuntarily retained.  Military Personnel
(MILPER) Message 05-236 stated on 22 September 2005 that all officers would
be converted to a Regular component with an indefinite commitment unless
they submitted a voluntary indefinite declination not later than 1 October
2005.

3.  The applicant states the deadline for declining voluntary indefinite
status elapsed during his first month (in an 8-day window) in combat during
which he did not have regular access to email and computers.  HRC admitted
they made no attempt to inform officers whose benefits would be affected by
this change.

4.  The applicant provides a 3-page statement; his separation orders; his
Officer Record Brief; MILPER Message 02-258, issued on 29 September 2002;
and MILPER Message 05-236, issued on 22 September 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  On 22 May 2002, the applicant enlisted in the Regular Army for the
Officer Candidate School incentive option.  He completed Officer Candidate
School, was commissioned a second lieutenant in the U. S. Army Reserve on 5
December 2002, and entered active duty that date.

3.  The applicant deployed to Iraq with his unit, Company A, 4th Battalion,
23d Infantry, on or about 17 August 2005.  He was awarded the Combat Action
Badge on 17 September 2005 for “being engaged or engaging the enemy.”

4.  Effective 11 November 2005, the applicant was integrated into the
Regular Army along with all other eligible U. S. Army Reserve officers.

5.  On or about 15 November 2006, the applicant returned from Iraq.

6.  Orders dated 5 December 2006 discharged the applicant from the Regular
Army, apparently as a result of his request for unqualified resignation,
with an effective date of 31 March 2007.  His separation orders do not
authorize him any TAMP or transitional health care benefits.

7.  MILPER Message 02-258, subject: Transitional Health Care Benefits for
Service Members and Their Families, issued on 29 September 2002, made
permanent section 1145 of Title 10, U. S. Code.  That section provided for
transitional health care benefits to four categories of Soldiers.  In
pertinent part, it provided for such benefits to service members who were
separated after being involuntarily retained on active duty in support of a
contingency operation.  That MILPER Message referred to an Office of the
Assistant Secretary of Defense Memorandum, Subject:  Implementation of the
Transitional Health Care for Dependents of Active Duty Members
Involuntarily Separated from Military Service, dated 22 August 2002.

8.  MILPER Message 05-167, subject:  Regular Army Integration, Release from
Active Duty Processing, Resignation Processing and Declination of Voluntary
Indefinite Status, was issued on 5 July 2005.  This MILPER Message
implemented the policy enacted by the National Defense Authorization Act of
2005 directing the transition of Reserve officers currently on the active
duty list (ADL) to Regular officer status.  Paragraph 5F stated that
Reserve officers on the ADL serving as an obligated volunteer (OBV) who
wished to separate at the end of their current service obligation would
continue to submit voluntary indefinite declination memorandums to the
Officer Retirements and Separations Section not later than 1 October 2005.
Those officers must still have submitted a [request for] release from
active duty (REFRAD) in accordance with paragraph  2-7 of Army Regulation
600-8-24.

9.  MILPER Message 05-236, subject:  Regular Army Integration, Release from
Active Duty Processing, Resignation Processing and Declination of Voluntary
Indefinite Status, was issued on 22 September 2005.  This MILPER Message
replaced MILPER Message 05-167 with the same subject.  Paragraph 5G of
MILPER Message 05-236 stated that Reserve officers on the ADL serving in
their OBV who wished to separate at the end of their current service
obligation would submit voluntary indefinite declination to the Officer
Retirements and Separations Section not later than 1 October 2005.  Those
officers must still have submitted a REFRAD in accordance with paragraph 2-
7 of Army Regulation 600-8-24.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s normal active duty service obligation would have ended
on     4 December 2005.  However, in May 2005 he was affected by STOP LOSS,
and in August 2005 he deployed to Iraq with his unit.  He contended MILPER
Message 05-236, issued on 22 September 2005, stated all officers would be
converted to a Regular component unless they submitted a voluntary
indefinite declination not later than 1 October 2005.  He contended the
deadline for declining voluntary indefinite status elapsed during an 8-day
window during which he was in combat and did not have regular access to
email and computers.  This contention is understood and appears to be
verified by his Combat Action Badge orders; however, it is not understood
and he does not explain why he was not aware of MILPER Message 05-167 also,
which was issued in July 2005 and gave the same guidance.

2.  Nevertheless, the applicant has no desire to remain on active duty as a
Regular Army officer and is scheduled to be discharged from the Army
effective 31 March 2007.  It is accepted that, for whatever reason, he was
not aware of the requirements to submit a voluntary indefinite declination
prior to 1 October 2005. Because he is due to be voluntarily discharged, he
does not fall under any of the categories that would make him eligible for
transitional health care benefits.

3.  It would be equitable to correct the applicant’s records to show he
submitted a voluntary indefinite declination memorandum to Officer
Retirements and Separations Section on 1 September 2005 and that his
request was received and processed in a timely manner.  His records should
then be corrected to show he submitted a request for REFRAD, with a REFRAD
date of 31 March 2007, and that his request was received by the appropriate
office and processed in a timely manner.  His separation orders, dated 5
December 2006, should then be corrected to show he will be REFRAD effective
31 March 2007 and transferred to the Individual Ready Reserve and to show
he is authorized transitional health care benefits.

4.  The applicant should be aware that this correction changes his
currently-scheduled discharge-from-a-military status to a release-from-
active-duty-with-a- Reserve status.  If he still wishes to be discharged,
he will have to process that request through the U. S. Army Human Resources
Command – St. Louis.

BOARD VOTE:

__lds___  __jtm___  __rsv___  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:


     a.  showing he submitted a voluntary indefinite declination memorandum
to Officer Retirements and Separations Section on 1 September 2005 and that
his request was received and processed in a timely manner;

     b.  showing he submitted a request for release from active duty, with
a release from active duty date of 31 March 2007, and that his request was
received by the appropriate office and processed in a timely manner; and

     c.  correcting his separation orders, dated 5 December 2006, to show
he will be released from active duty effective 31 March 2007 and
transferred to the Individual Ready Reserve and to show he is authorized
transitional health care benefits.



                                        Linda D. Simmons
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003930                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070322                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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