IN THE CASE OF:	  

		BOARD DATE:	  	   30 April 2009

		DOCKET NUMBER:  AR20080009899 


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 Orders C-08-724606, dated 6 August 2007, be revoked and that he be reinstated into the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR), USAR Control Group (Reinforcement) without a break in service, thereby making him eligible for the Fiscal Year (FY) 2008 Major Army Reserve Judge Advocate General's Promotion Selection Board which convened on 10 March 2008.

2.  The applicant states, in effect, that it would be an injustice to require him to wait an additional year before appearing before the FY 2008 major promotion board.  He states that his intent was always to remain in the Active Reserve even while attempting to join the Arizona Army National Guard (ARNG).  He states, in effect, that he was assigned to the Arizona ARNG but became frustrated and requested to be transferred back the IRR on 27 September 2007.  He also states, in effect, that he was transferred from the USAR Control Group to the Standby Reserve because of the ARNG's inability to process his paperwork in a timely manner.  He further states that a member of the ARNG told him not to submit his AHRC Form 4145 (Election of Options-Military Service Obligation (MSO)) because of pending appointment orders.  He concludes by stating that it was not until January 2008 that he discovered he would not be eligible to appear before the upcoming promotion board because he was not on the Reserve Active Status List (RASL) for 1 year prior to the convening date of the board.  Therefore, 

he requests that the orders reassigning him to the Standby Reserve (Inactive) be revoked or a waiver granted so he could appear before the FY 2008 Army Reserve Judge Advocate General's Promotion Selection Board.

3.  The applicant provides a self-authored statement; copies of two AHRC Forms 4145 showing the date they originated and the date of his signature; copies of Orders C-08-724606, Orders 256-629, Orders C-10-727855, and Orders 029-701; and copies of electronic mail (email) messages in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the USAR in an enlisted status for 11 years, 1 month, and 18 days and was discharged on 30 September 1997 to accept an appointment as a commissioned officer.

2.  On 1 October 1997, he was appointed as a Judge Advocate General's Corps first lieutenant in the USAR.

3.  On 24 April 2004, the applicant entered active duty in an Active Guard Reserve status.

4.  The applicant was issued his notification of eligibility for retired pay (his 20-year letter) on 14 September 2006.  

5.  On 3 April 2007, the applicant  was released from active duty and was assigned to the USAR Control Group (Reinforcement).

6.  On 4 May 2007, U.S. Army Human Resources Command (HRC), St. Louis, sent the applicant an AHRC Form 4145 and a memorandum of instruction explaining his options for completing the form.

7.  On 19 June 2007, HRC-St. Louis sent the applicant a second AHRC Form 4145 requesting that he select his option, sign, date, and return it.

8.  On 6 August 2007, HRC-St. Louis Orders C-08-724606 released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Standby Reserve (Inactive List) because he failed to respond to the MSO 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."

9.  On 13 September 2007, Departments of the Army and the Air Force Joint Forces Headquarters-Arizona, Phoenix, AZ, Orders 256-629 appointed the applicant a captain in the ARNG.

10.  On 26 September 2007, the applicant signed and submitted his AHRC Form 4145 electing to remain in the IRR.

11.  On 4 October 2007, HRC-St. Louis Orders C-10-727855 released the applicant from the Standby Reserve (Inactive List) and assigned him to the USAR Control Group (Reinforcement).

12.  The applicant submitted several email messages dating from 7 February 2007 through 30 January 2008 regarding discussions about his assignment to and his reassignment from the Arizona ARNG.

13.  On 29 January 2008, Departments of the Army and the Air Force Joint Forces Headquarters-Arizona Orders 029-701 separated the applicant from the ARNG effective 15 September 2007 and transferred him to the USAR Control Group (Reinforcement).

14.  During the processing of this case an advisory opinion was obtained from the Career Management Officer, Office of the Judge Advocate General, Rosslyn, VA, which states that based on the recorded transactions in the Soldier Management System and discussions with personnel at HRC, the applicant was properly placed in the Standby Reserve for failing to respond in a timely manner to the requests by HRC regarding his intention upon completing his MSO.  The advisory opinion continued that on two separate occasions HRC sent the applicant an AHRC Form 4145 and a memorandum explaining his options prior transferring him to the USAR Standby Reserve (Inactive Standby List).  The memorandum provided instructions for completing the AHRC Form 4145, the disposition of the documents, and the repercussion of not returning the forms in a timely manner.

15.  The advisory opinion noted that no response was received to the MSO notices dated 4 May 2007 and 19 June 2007; therefore, the applicant was transferred to the USAR Standby Reserve (Inactive Status List) on 6 August 

2007.  On 3 October 2007, HRC received the AHRC Form 4145, dated 4 May 2007, which was signed by the applicant on 26 September 2007 and on 4 October 2007 the applicant transferred back into the IRR.

16.  The advisory opinion was provided to the applicant and he responded by requesting revocation of Orders C-08-724606 which placed him in the Standby Reserve.  He stated that he has been on the RASL since 15 September 2007 and prior to that he was on the RASL from 13 August 1986 until 6 August 2007.  He also stated that he should never have been removed from the RASL after coming off Active Guard Reserve status on 4 April 2007.  The applicant continues to state in his rebuttal that he was in constant contact with the Arizona ARNG as shown by his numerous email messages and that it was always his intent to join the ARNG directly after being released from active duty.  He states that the reason he did not return the AHRC Form 4145 prior to the time he did was because he was told by Lieutenant Colonel P____ F____, Staff Judge Advocate of the Arizona ARNG, not to return it because it would slow down the accession process into the ARNG.  He adds that he now knows he should have returned it.  He concludes by stating that the orders should be revoked to prevent an injustice from occurring, that he has been in the USAR for over 20 years.  He also states that the orders should be revoked so he does not have an unintended break in service and so his promotion packet can go before the promotion board with his peer group.

17.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides, in pertinent part, that the Standby Reserve consists of Soldiers who maintain their military affiliate without being in the Ready or Retired Reserve.  Membership is limited to those Soldiers having mobilization potential.  The Standby Reserve (Inactive Status List) consists, in part, of Soldiers screened from the Ready Reserve who do not request assignment to the Active Status List.

18.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 2-5, in pertinent part, states that to be eligible for consideration for promotion to the next higher grade, an ARNG or USAR officer must have continuously performed service on either the RASL or the Active Duty List (ADL) (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board.  Paragraph 2-6, in pertinent part, states that if an officer is returned to an active status, the officer’s 

name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board.  An officer returned to an active status 
after having been in an inactive or retired status will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy; or, in the case of an ARNG officer, Federal recognition) until at least 1 year after the date of return to an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the orders transferring him to the Standby Reserve (Inactive) should be revoked was carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant received his MSO election forms and the memorandums with instructions for completing the forms prior to his reassignment to the Standby Reserve (Inactive).  The evidence of record shows that the applicant did not sign the MSO election form requesting to remain in the IRR until he decided to resign from the Arizona ARNG.  The evidence of record shows that the applicant was transferred to the Standby Reserve (Inactive) prior to his request for discharge from the Arizona ARNG.  

3.  The applicant contended in his response to the advisory opinion that a lieutenant colonel in the Arizona ARNG told him not to return the AHRC Form 4145.  However, the applicant was an experienced captain in the Judge Advocate General's Corps.  It is not reasonable to believe that he would have (or should have) relied on advice from the Arizona ARNG in regard to two notices from the USAR to express his wishes regarding his USAR status.  

4.  Therefore, he is not entitled to have Orders C-08-724606, dated 6 August 2007, revoked to show he was never assigned to the Standby Reserve (Inactive).

5.  Because there is insufficient evidence to show there is an injustice in permitting his transfer to the Standby Reserve (Inactive) stand, the evidence of record shows that the applicant was not on the RASL or ADL continuously for 1 year prior to the convening date of the FY 2008 USAR Judge Advocate General's Promotion Selection Board.  Therefore, he was not eligible to appear before the FY 2008 USAR Judge Advocate General's Promotion Selection Board.


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)                                         AR20080009899



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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