IN THE CASE OF:	

		BOARD DATE:	  24 March 2009

		DOCKET NUMBER:  AR20080007303 


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 her discharge from the U.S. Army Reserve (USAR) on 14 January 2008 be voided and that her record be corrected to show that in February 2007 she elected to be placed in a Reserve unit.

2.  The applicant states she contacted a Sergeant First Class (SFC) D***** at Fort Eustis and began pursuing available units for her to be assigned to.  She states that in December 2007 she was able to locate a unit; however, just prior to completing the application process she received her notice of discharge.  She states that if she is reinstated, she will continue the application process.

3.  The applicant provides, in support of her application, copies of a statement from SFC D******; and a letter from U.S. Army Human Resources Command, 
St. Louis, MO (HRC-STL).

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the USAR on 13 May 1984.  The applicant entered a period of active duty on 29 May 1984.  She was released from active duty on 1 August 1993 and transferred to Headquarters, 97th USAR Command, Fort Meade, MD.  She had completed 9 years, 2 months, and 3 days of active service that was characterized as honorable.

2.  On 5 April 1994, the applicant was relieved from Headquarters, 97th USAR Command and assigned to the USAR Control Group (Reinforcement).
3.  On 10 June 1999, the applicant was voluntarily released from the USAR Control Group (Reinforcement) and assigned to the 318th Military Police Regiment, Fort Eustis, VA.  On 12 July 2000, she was promoted to major.

4.  On 12 July 2000, the applicant was released from the 318th Military Police Regiment and assigned to the USAR Control Group (Reinforcement).  The reason stated on the orders was "personal cogent reasons."

5.  On 27 December 2006, the applicant was released from the USAR Control Group (Reinforcement) and assigned to the Standby Reserve (Inactive List).  The reason stated on the orders was "officer made no MSO [military service obligation] election."  Instructions in the applicant's transfer orders informed her that she would be discharged or transferred to the Retired Reserve (if eligible)
1 year from 27 December 2006 unless she provided the MSO form requesting to remain in the Individual Ready Reserve (IRR).  It also informed her to contact the HRC customer service at 1-800-318-5298, for questions or forms.

6.  The applicant was discharged on 14 January 2008.  A copy of the applicant's discharge orders was not available for review.

7.  A copy of the applicant's AHRC Form 4145 (Election of Options - Military Service Obligation), undated, shows the applicant elected to remain a member of the IRR and understood that while assigned she was subject to mobilization.  Although the form is undated, the form was faxed with a date of 23 January 2008.

8.  In a letter, dated 19 February 2008, HRC-STL acknowledged receipt of the applicant's AHRC Form 4145 on 23 January 2008 indicating her desire to remain in the IRR.  However, HRC-STL informed her that she had already been discharged effective 14 January 2008.  HRC-STL advised the applicant that under a recent change to DODD [Department of Defense Directive] 1235.13 officers who have fulfilled their MSO are required to make an election to remain in an active status in the USAR.  Officers who do not make an election will be transferred to the Retired Reserve, if eligible, or discharged.  HRC-STL further stated that officers who have been assigned to the Standby Reserve (Inactive List) for one year and have not requested transfer to an active status (in the Ready Reserve), or submitted an unqualified resignation, will be transferred to the Retired Reserve, if qualified, or discharged.  HRC-STL advised the applicant she had been assigned to the Standby Reserve (Inactive List) for 1 year and due to her not having submitted an MSO election form within 1 year she was discharged.

9.  The applicant submitted an undated statement from SFC D***** attesting to the fact that he had been working with the applicant to locate a reserve unit for her since February 2007.

10.  In the processing of this case, an advisory opinion, dated 22 December 2008, was provided by the Chief, Military Police Branch, Officer Personnel Management Directorate, HRC-STL.

11.  The HRC-STL official stated that on 18 September 2006 the applicant was mailed an AHRC Form 4145 for her election, signature, and return.  Instructions and a pre-addressed envelope were included in the mailing.  The official stated a second MSO letter was mailed to the applicant on 2 November 2006; however, the applicant failed to respond to either mailing.  The official stated that pursuant to DODD 1235.13, officers who do not make an election will be transferred to the Standby Reserve, Retired Reserve, if eligible, or discharged.  The applicant was transferred to the Standby Reserve on 27 December 2006 and a copy of the orders was mailed to her address on file.  The official stated that officers assigned to the Standby Reserve for 1 year who do not request transfer to the Ready Reserve or submit their unqualified resignation will be transferred to the Retired Reserve, if qualified, or discharged in accordance with Title 10, U.S. Code, section 12683(b)(4).  Since the applicant failed to make an election, submit her resignation, and was not eligible for transfer to the Retired Reserve she was discharged from the USAR on 14 January 2008.

12.  The HRC-STL official stated that based on review of the documentation and the pertinent policy guidance, the discharge orders are valid and should not be revoked.  The official also indicated that the applicant may request reappointment through the Reserve Appointments Branch (AHRC-OPD-R).

13.  A copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit a rebuttal.  The applicant did not respond within the prescribed time frame.

14.  In an electronic mail, dated 10 March 2009, the applicant indicated that she was in the process of requesting reappointment in the USAR as pointed out in the HRC-STL advisory opinion.

15.  Paragraph 4.5 of DODD 1235.13 provides that 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.
16.  Title 10, U.S. Code, section 12683(b)(4) provides for the 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 who is qualified for transfer to the Retired Reserve and does not apply for such a transfer.

DISCUSSION AND CONCLUSIONS:

1.  An AHRC Form 4145 was mailed to the applicant's address on file on
18 September 2006 for the applicant's election, signature, and return.  Instructions and a pre-addressed envelope were included in the mailing.  A second letter was mailed to the same address on 2 November 2006.  It is noted that the applicant's mailing address at the time is the same address indicated on her application to the Board.

2.  The applicant failed to make an election and was transferred to the Standby Reserve (Inactive List) on 27 December 2006. The applicant was advised in her orders that she would be discharged or transferred to the Retired Reserve, if eligible, 1 year from the effective date of her transfer unless she provided the MSO Election Form requesting to remain in the IRR.  She again failed to make an election and because she had not submitted a resignation and she was not eligible for transfer to the Retired Reserve, she was discharged on 14 January 2008.

3.  The fact that she was working with SFC D***** since February 2007 is noted.  However, this does not explain why she failed to complete her MSO election form and return it as directed.

4.  As noted by HRC-STL, the applicant faxed her AHRC Form 4145 to HRC on 
23 January 2008.  However, the applicant had already been discharged effective 14 January 2008.  The applicant provided no explanation as to why the form was not completed and submitted in September 2006 in compliance with the initial letter from HRC-STL.

5.  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.
 





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)                                         AR20080007303



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ABCMR Record of Proceedings (cont)                                         AR20080007303



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