IN THE CASE OF:	  

		BOARD DATE:	       18 February 2009

		DOCKET NUMBER:  AR20080006228 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge from the United States Army Reserve (USAR) be revoked or rescinded and that he be reinstated into the Individual Ready Reserve (IRR) without a break in service.

2.  The applicant states that, although he was discharged because he had not executed and returned the Election of Options-Military Service Obligation Form (ARHC [Army Human Resources Command] Form 4145) to HRC, St. Louis, Missouri, he had, in fact, returned that form.  Since there was no requirement to return the form via registered-return receipt requested mail, he had no way of proving that he had returned it.  There is no system in place for those Soldiers affected to confirm that HRC, St. Louis had received the forms.

3.  The applicant provides copies of his 27 January 2008 memorandum to HRC, St. Louis; AHRC Form 4145 showing his signature and dated 2 December 2006; and a 7 March 2008 memorandum from the Chief, The Adjutant General Directorate, West, HRC, St. Louis. 

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Georgia Army National Guard (GAARNG) in an enlisted status for 4 years and 2 months and was discharged from the ARNG and as a Reserve of the Army, on 3 June 1992, to accept an appointment as a commissioned officer.

2.  On 4 June 1992 he was appointed a Medical Service Corps second lieutenant in the GAARNG.  He was promoted to first lieutenant on 29 May 1995.

3.  On 15 June 1996, the applicant was separated from the GAARNG and transferred to the USAR Control Group (Reinforcement).

4.  HRC, St. Louis Orders C-12-641248, dated 27 December 2006, released the  applicant from the USAR Control Group (Reinforcement) and assigned him to the Standby Reserve (Inactive List) because he had made no response to a military service obligation election form.  Additional instructions included in those orders stated, "You will be discharged or transferred to the Retired Reserve (if eligible) one (1) year from the effective date of this order unless you provide the MSO election requesting to remain in the IRR…."

5.  On 14 January 2008, HRC, St. Louis Orders D-01-802547 discharged the applicant from the USAR.  Additional instructions included the entry "Failed to provide MSO election form as required by DoD [Department of Defense] Directive 1235.13."

6.  The applicant's 27 January 2008 memorandum to HRC, St. Louis stated that he had completed and submitted the election form around 1 December 2006.  He contended that he never received any other correspondence concerning his status in the USAR until he received an honorable discharge certificate on or about 18 January 2008.  He submitted a copy of the AHRC Form 4145 and asked that the resultant discharge order be revoked.

7.  A 7 March 2008 memorandum from the Chief, The Adjutant General Directorate, West, HRC, St. Louis stated that the discharge order could not be revoked, unless it had involved fraud, and that the applicant could apply to this Board.

8.  Title 10, U.S. Code, section 12683 (Reserve officers: limitation on involuntary separation) provides, in pertinent part, that an officer of a reserve component who has at least five years of service as a commissioned officer may not be separated from that component without his consent except— subsection "(b) (4) A separation of an officer who is in an inactive status in the Standby Reserve and who is not qualified for transfer to the Retired Reserve or is qualified for transfer to the Retired Reserve and does not apply for such a transfer. "

9.  DoD Directive 1235.13, dated 16 July 2005 (Management of the Individual Ready Reserve (IRR) and the Inactive National Guard (ING)) states, in pertinent part, "4.5. Officers who have fulfilled their MSO and have not taken action to elect 

to remain in the IRR shall be advised of the requirement to remove them from the military.  The Military Departments shall remove those officers from the military within 2 years after fulfillment of the officer’s MSO unless they positively elect to remain in the IRR past their MSO."

10.  During the processing of this case an advisory opinion was obtained from the Transition and Separations Branch, HRC, St. Louis.  It noted that no response was received to MSO notices dated 18 September and 2 November 2006, therefore the applicant was transferred to the USAR Control Group (Standby (Inactive)) on 27 December 2006, and subsequently discharged in accordance with DoD Directive 1235.13.

11.  The advisory opinion was provided to the applicant and he responded that the copy of the ARHC Form 4145, dated 2 November 2006, shows that he completed and signed the form on 1 December 2006.  He further stated that he sent the form back to HRC, St. Louis on or about 1 December 2006.  He has no better proof since there was no requirement or suggestion to return it via registered mail – return receipt requested.  He observed that he received the discharge on or about 18 January 2008 and was concerned about "the impact this action would have on my current attempts to transfer back into the Georgia Army National Guard…."  He observes that there are flaws in the regulation in that HRC is not foolproof and that HRC would never admit to anything bordering on fraudulent.  He also thinks it was unfair that the advisory opinion in this case was provided by the same person who originally refused his appeals with HRC.  He closed by asking that, in addition to his original request, that his original pay entry base date (PEBD) and date of rank (DOR) as a captain be restored.

12.  On 17 April 2008 the Commander, 78th Troop Command, GAARNG, awarded the applicant, using the civilian title of "Mr.," the Georgia Commendation Medal for serving as a member of a joint disaster planning task force from 
1 October 2008 to 9 March 2009.  It is not clear when the applicant was appointed/reappointed an officer in the GAARNG.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his 14 January 2008 discharge be revoked and his original PEBD and DOR as a captain be restored.

2.  The applicant's assertions are not convincing.  He has neither questioned why he never received nor explained why he did not respond to the 27 December 2006 orders that released him from the USAR Control Group (Reinforcement) and assigned him to the standby reserve.  

3.  Similarly, the Georgia award shows that the applicant had significant contact with the Georgia state military establishment during the period when he could have completed an MSO statement and avoided this situation; yet, there is no support or even comment from that quarter.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006228



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ABCMR Record of Proceedings (cont)                                         AR20080006228



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