IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006724 


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, in effect, that his military records be corrected to show he was discharged from the U.S. Army Reserve (USAR) on 21 June 1996, the date of his completion of his military obligation instead of 27 December 2001.

2.  The applicant states, in effect, his records currently show his membership in the USAR was terminated effective 27 December 2001 upon his acceptance of an appointment as a first lieutenant in the Ohio Army National Guard (OHARNG). 
He states he was not aware he was still assigned to the USAR after 21 June 1996 as evidenced by his negative response to the question concerning being a current member of any component of the Armed Forces on his application for Federal Recognition.  He states this date leaves him 15 months short of being able to complete 20 years of active service prior to his mandatory retirement date (MRD).

3.  The applicant provides a copy of his discharge orders, orders for release from the USAR Control Group (Reinforcement), orders for release from active duty while attending the U.S. Military Academy (USMA), and his application for Federal Recognition in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows he completed 11 months 
and 2 days of active service from 29 July 1984 to 30 June 1985.  He was released from active duty to enter the USMA.

3.  On 24 May 1989, the applicant graduated from the USMA and was appointed a second lieutenant in the Regular Army (RA).

4.  On 1 June 1993, the applicant was discharged from the RA in the rank of first lieutenant due to a reduction in authorized strength.  He had completed 4 years and 8 days of active service that was characterized as honorable.

5.  The applicant's discharge orders, dated 31 March 1993, shows the applicant was assigned to the USAR Control Group (Reinforcement) until 21 June 1996 for completion of his USAR obligation.

6.  There is no record of the applicant's appointment in the USAR.

7.  There is no record the applicant resigned, requested discharge, or was relieved from the USAR.

8.  On the applicant's application for Federal Recognition, dated 19 November 2001, he indicated he was not presently a member of any component of the Army Forces.

9.  The applicant took the Oaths of Office as a first lieutenant in the OHARNG on 27 December 2001.

10.  U.S. Army Reserve Personnel Command (now known as Human Resources Command [HRC]), St. Louis, Missouri, Orders C-03-207608 released the applicant from the USAR Control Group (Reinforcement) effective 27 December 2001.

11.  On 29 December 2004, the applicant completed a period of 10 months and 20 days of active service in the grade of captain.

12.  On 7 July 2005, the applicant was ordered to full time National Guard Duty in an Active Guard Reserve (AGR) status in the grade of captain effective 16 July 2006 and continues to service in that status.

13.  Title 10, United States Code, Section 12203 provides that appointments of Reserve personnel in commissioned grades are for an indefinite term and are held during the pleasure of the President.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been discharged from the USAR on 21 June 1996.

2.  The applicant's record shows continuous service since his appointment as a second lieutenant in the RA on 24 May 1989.

3.  Without evidence to the contrary, it is presumed that effective the day he was discharged from the RA, the applicant accepted an appointment in the USAR to complete his military service obligation.  Although his military obligation was completed on 21 June 1996, an appointment in the commissioned grades in the USAR are for an indefinite term unless the officer resigns, requests discharge, or is relieved for cause.  

4.  There is no evidence the applicant requested discharge or resigned his commission upon completion of his military obligation on 21 June 1996.  

5.  In view of the above, the applicant's effective date of release from the USAR is correct.

6.  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 that requirement.

7.  It is noted that a change to dates of discharge that brings about a period wherein there is no military status (i.e. broken service) may result in the adjustment of an individuals pay entry base date.


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)                                         AR20080006724



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ABCMR Record of Proceedings (cont)                                         AR20080006724



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