IN THE CASE OF:	  

		BOARD DATE:	  	  12 November 2008

		DOCKET NUMBER:  AR20080013758 


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, correction of his records as described by his counsel.

2.  The applicant states, in effect, that he defers to his counsel.

3.  The applicant provides copies of 3 DD Forms 214 (Certificates of Release or Discharge from Active Duty), with effective dates of 23 October 1983, 1 April 1999, and 27 September 2003; Headquarters, U.S. Army Reserve Personnel Command, St. Louis, Missouri, Orders R-06-373788, dated 25 June 2003; Headquarters, Fort McPherson, Fort McPherson, Georgia, Orders 267-0104, dated 24 September 2003; 4 DA Forms 67-9 (Officer Evaluation Reports) for the periods 13 December 2000 through 15 September 2001, 16 September 2001 through 15 September 2002, 16 September 2002 through 31 July 2003, and
1 August 2003 through 31 July 2004; DA Form 1059 (Service School Academic Evaluation Report), dated 30 June 2005; and 3 Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, memoranda, dated 27 February 2006, 5 October 2006, and 27 November 2007, subject:  Fit-For-Duty Evaluation [pertaining to the applicant].

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant’s records to show he was returned to active duty in the U.S. Army, effective 28 September 2003; payment of all back pay and allowances due as a result of his reinstatement on active duty; that he was retired from active duty on 30 April 2005 and placed on the retired list, in the grade of Lieutenant Colonel (LTC)/pay grade O-5, effective 1 May 2005; and payment of all retired back pay and allowances due as a result of this action.

2.  Counsel states, in effect, the applicant had served on active duty for 18 years, 5 months, and 25 days when he was released from active duty (REFRAD) on
27 September 2003:

     a.  Counsel provides a summary of the applicant’s service in the U.S. Army indicating he served on active duty as an enlisted man from 24 July 1979 until
23 October 1983; was appointed as a Reserve commissioned officer and served on active duty from 4 January 1987 until 1 April 1999; and was recalled to active duty in support of the Global War on Terrorism and served from 28 September 2001 until 27 September 2003.  At the time he was REFRAD, the applicant had completed 18 years, 5 months, and 25 days total active service and 14 years,
2 months, and 26 days as an Army officer on active duty.

     b.  Counsel states that on 25 June 2003 the applicant received orders for continued service on active duty for a period of 3 years and directing him to report to Fort McPherson, Georgia on 13 August 2003.   Counsel also states that the applicant was on active duty at the time and he was merely being reassigned from one position on active duty to another billet appropriate for his grade.   Counsel further states that the applicant was REFRAD “solely by reason of his HIV [human immunodeficiency virus] positive status, although Army orders writers cleverly omitted any statement to this effect on his REFRAD orders.”

     c.  Counsel states that the applicant reported to Fort McPherson (Georgia) on 13 August 2003 and on 14 August 2003 he was diagnosed as HIV positive.  He was informed that his orders would be revoked and the applicant was REFRAD on 27 September 2003 with 18 years, 5 months, and 25 days active service.

     d.  Counsel states the applicant’s duty performance was entirely satisfactory and his Officer Evaluation Reports reflect excellent, honorable, and diligent service.  In addition, subsequent to his REFRAD, the applicant’s fitness for duty was reviewed on 5 separate occasions by the Army and on each occasion he was determined to be fit for full duty.

     e.  Counsel states the applicant was REFRAD with 18 years, 5 months, and 25 days, in violation of Title 10, United States Code (USC), section 12646(a).  Counsel also states that Title 10, USC, section 12686(a), provides that a Reserve officer on active duty who is within 2 years of retirement eligibility for an active duty service retirement may not be involuntarily released from active duty before he becomes eligible for retired or retainer pay unless the release is approved by the Secretary of the Army.  Counsel further states the applicant’s orders do not indicate that the Secretary considered, authorized, or approved the applicant’s REFRAD.

     f.  Counsel states that it is well-established that Government agencies are bound by the applicable statutes and regulations and government officials must follow their own regulations, even if they were not compelled to have them at all.  Counsel also cites specific Federal court cases in support of his argument.

     g.  Counsel states that in a case where the Secretary’s specific approval is required and the Secretary does not review the action, as in the applicant’s case, Federal courts have concluded that the “harmless error” analysis is inapposite.
Counsel adds that the Court explained that fundamental errors are not limited to statutory procedural error, but may also result from violations of regulations and even internal operating procedures.

     h.  Counsel states there is no means by which the prejudice from the improper release can be assessed.  He adds that there is now a different Secretary of the Army (than at the time of the applicant’s REFRAD) and the military advisors to the Secretary all have been reassigned.  Thus, there is no way to assess what the then-sitting Secretary might have decided to do.

     i.  Counsel states that Army regulations prohibit HIV positive Soldiers from serving on active duty outside the continental United States (OCONUS). However, Army regulations provide no (similar) prohibition on active duty service within the continental United States (CONUS), which is where the applicant was serving when he was REFRAD.  Thus, the applicant’s REFRAD was inconsistent with Army policy as set forth in the governing Army regulations.

     j.  Counsel concludes by requesting the applicant’s records be corrected to show he was returned to active duty in the U.S. Army, effective 28 September 2003; payment of back pay and allowances due as a result of his reinstatement on active duty; that he was retired from active duty on 30 April 2005 and placed on the retired list, in the grade of LTC (O-5), effective 1 May 2005; and payment of all retired back pay and allowances due as a result of this action.

3.  Counsel provides no additional documentary evidence.

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 service records show that he enlisted in the U.S. Army Reserve (USAR) on 19 July 1979 and entered active duty in the Regular Army (RA) for a period of 4 years on 24 July 1979.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 75D (Personnel Records Specialist).  On 22 July 1983, the applicant extended the period of his enlistment to a period of 3 years and
3 months.  He was honorably REFRAD on 23 October 1983 and transferred to the USAR Control Group (Reinforcement), Reserve Component Administration Center, St. Louis, Missouri.  At the time, he was credited with completing 4 years, 3 months, and 0 days net active service this period and 0 years, 0 months, and
5 days total prior inactive service.

3.  The applicant’s military service records show that he enlisted in the USAR Control Group (Reserve Officers’ Training Corps) on 29 January 1985.  He was appointed as a Reserve commissioned officer on 11 June 1986, branch detailed to the Adjutant General (AG) Corps, and ordered to active duty for a period of
3 years on 4 January 1987.  The applicant continued to serve on active duty in a voluntary indefinite status and was promoted to the rank of Captain (CPT)/pay grade O-3, effective 1 July 1991.  He was honorably REFRAD on 1 April 1999, under authority of Army Regulation 600-8-24, paragraph 5-9, based on his
non-selection for permanent promotion and transferred to the USAR Control Group (Reinforcement), Army Reserve Personnel Center, St. Louis, Missouri.

4.  The applicant was promoted as a Reserve commissioned officer of the Army to the rank of Major (MAJ)/pay grade O-4, effective 19 July 2000.

5.  The applicant’s records contain a DD Form 2648 (Preseparation Counseling Checklist), dated 29 July 2003, that was completed by the applicant at Fort McPherson, Georgia.  Section III (All Transitioning Service Members Must Read and Sign) states “I was offered preseparation counseling on the above date (Item 7) on my transition benefits and services as appropriate.  I understand that this preseparation counseling is provided to assist my transition process as required by Title 10, USC, 1142.”  Item 16 (Reserve Affiliation) shows the applicant indicated he desired counseling concerning his Reserve affiliation and he placed his signature on this document.

6.  The applicant’s military service records contain a DD Form 214, with an effective date of 27 September 2003, that shows the applicant was ordered to active duty in a Reserve commissioned officer status on 28 September 2001, in the grade of MAJ (O-4), in support of Noble Eagle Operations in accordance with Title 10, USC, section 12304.  This document also shows he was honorably REFRAD on 27 September 2003 under authority of Army Regulation 600-8-24, paragraph 2-27a, based on completion of required active service.  At the time, he was credited with completing 2 years, 0 months, and 0 days net active service this period; 4 years, 3 months, and 0 days total prior active service; and 0 years, 0 months, and 5 days total prior inactive service.  This document further shows the applicant was transferred to U.S. Army Forces Command, Augmentation Detachment 1, Fort McPherson, Georgia and that he placed his signature in Item 21 (Signature of Member Being Separated) of the DD Form 214.

7.  The applicant’s military service records contain a copy of Headquarters, U.S. Army Human Resources Command, St. Louis, Missouri, Orders B-01-700410, dated 10 January 2007, as amended by Headquarters, U.S. Army Human Resources Command, St. Louis, Missouri, Orders B-01-700410A01, dated
1 March 2007.  These orders show the applicant was promoted as a Reserve commissioned officer of the Army to the rank of Lieutenant Colonel (LTC)/pay grade O-5, effective 7 December 2006.

8.  The applicant’s military service records show that he is currently serving in an active status in the USAR as a Reserve commissioned officer in the grade of LTC (O-5).

9.  There is no evidence in the applicant’s military service records that shows he was referred to a medical/physical evaluation board or that he was found medically unfit for military service.

10.  In support of his application, the applicant and his counsel provides the following documents:

     a.  DD Form 214, with an effective date of 23 October 1983, that shows the applicant entered active duty in an enlisted status on 24 July 1979, attained the grade of Sergeant (SGT)/pay grade E-5, and was honorably REFRAD on
23 October 1983 under authority of Army Regulation 635-200, Chapter 4, based on expiration term of service.  At the time, he was credited with completing
4 years, 3 months, and 0 days net active service this period and 0 years,
0 months, and 5 days total prior inactive service.
     b.  DD Form 214, with an effective date of 1 April 1999, that shows the applicant entered active duty in a USAR commissioned officer status on
4 January 1987, attained the grade of CPT (O-3), and was honorably REFRAD on 1 April 1999 under authority of Army Regulation 600-8-24, paragraph 5-9, based on non-selection for permanent promotion.  At the time, he was credited with completing 12 years, 2 months, and 28 days net active service this period and 4 years, 3 months, and 0 days total prior active service.

     c.  DD Form 214, with an effective date of 27 September 2003, that was previously introduced and considered in this Record of Proceedings.

     d.  Headquarters, U.S. Army Reserve Personnel Command, St. Louis, Missouri, Orders R-06-373788, dated 25 June 2003, that show the applicant was to be REFRAD on 2 August 2004, ordered to active duty in an Active Guard Reserve (AGR) status for a period of 3 years on 3 August 2003 in the grade of MAJ (O-4), and ordered to report to U.S. Army Reserve Command (Support), Fort McPherson, Georgia on 13 August 2003.  The orders also show the authority as Title 10, USC, section 12301(d), and instruct “Do No Access into the Strength of the Active Army.”  The orders further show that they were sent to the applicant at his local address of record in Jonesboro, Georgia.

     e.  Headquarters, Fort McPherson, Fort McPherson, Georgia, Orders
267-0104, dated 24 September 2003, that show the applicant was REFRAD, not by reason of physical disability, on 27 September 2003.  These orders also show, on the date immediately following the applicant’s REFRAD, he was assigned to U.S. Army Forces Command Augmentation, Fort McPherson, Georgia.

     f.  DA Forms 67-9 (Officer Evaluation Reports) for the periods 13 December 2000 through 15 September 2001, 16 September 2001 through 15 September 2002, 16 September 2002 through 31 July 2003, and 1 August 2003 through
31 July 2004.  The Officer Evaluation Reports document the applicant’s duties and responsibilities and also provide an evaluation of his performance and potential during the period of the reports.  In pertinent part, the DA Forms 67-9 show that the applicant was rated “Best Qualified” by his Senior Rater on each of the 4 DA Forms 67-9 for the respective rating periods.

         (1)  The DA Form 67-9 for the period 13 December 2000 through
15 September 2001 is a change of rater report and shows the applicant was serving as Operations Staff Officer and assigned to U.S. Army Forces Command, Augmentation Unit, Fort McPherson, Georgia; 81st Regional Support Command (Troop Program Unit). 



         (2)  The DA Form 67-9 for the period 16 September 2001 through
15 September 2002 is an annual report and shows the applicant was serving as Operations Staff Officer and assigned to U.S. Army Forces Command, Augmentation Unit, Fort McPherson, Georgia; 81st Regional Readiness Command (Troop Program Unit). 

         (3)  The DA Form 67-9 for the period 16 September 2002 through
31 July 2003 is a change of rater report and shows the applicant was serving as Operations Liaison Officer and assigned to Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-3, The Pentagon, Washington, District of Columbia. 

         (4)  The DA Form 67-9 for the period 1 August 2003 through 31 July 2004 is an annual report and shows the applicant was serving as Crisis Action Officer and assigned to U.S. Army Forces Command, Augmentation Unit, Fort McPherson, Georgia; 81st Regional Readiness Command (Troop Program Unit).

     g.  The DA Form 1059 (Service School Academic Evaluation Report), dated
30 June 2005, shows the applicant achieved course standards and completed the Command and General Staff Officer Course (Nonresident) on 29 June 2005.

     h.  Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, memoranda, dated 27 February 2006, 5 October 2006, and
27 November 2007, subject:  Fit-For-Duty Evaluation [pertaining to the applicant].  These 3 documents show, in pertinent part, the applicant was found fit for duty, a copy of the fitness for duty determination was included in his medical records, and the applicant was notified of the date his next annual fit for duty examination should be completed.

11.  Title 10 (Armed Forces), United States Code (USC), section 12646 (Commissioned officers:  retention of after completing 18 or more, but less than 20, years of service), subsection 2, provides that if on the date prescribed for the discharge or transfer from an active status of a Reserve commissioned officer he is entitled to be credited with at least 18, but less than 19, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of title 14, without his consent before the earlier of the following dates: (1) the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title or (2) the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.


12.  Title 10, USC, section 12686 (Reserves on active duty within two years of retirement eligibility:  limitation on release from active duty), subsection a (Limitation), provides that under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.

13.  Title 10, USC, section 12304, governs the Selected Reserve and certain Individual Ready Reserve members ordered to active duty other than during war or national emergency.  Subsection g (Termination of Duty) provides whenever any unit of the Selected Reserve or any member of the Selected Reserve not assigned to a unit organized to serve as a unit, or any member of the Individual Ready Reserve, is ordered to active duty under authority of subsection (a), the service of all units or members so ordered to active duty may be terminated by: (1) order of the President or (2) law.

14.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) provides procedures for the appointment of commissioned and warrant officers in the Reserve Components of the Army.  The Glossary, Section II (Terms), of this Army regulation defines the term "active duty" as full-time duty in the active military service of the United States and applies to all Army National Guard of the United States (ARNGUS) and USAR Soldiers ordered to duty under Title 10, USC, other than for training.  It defines the term "active status" as the status of an ARNGUS or USAR commissioned officer, other than a commissioned warrant officer, who is not in the inactive ARNG, in the Standby Reserve (Inactive List), or in the Retired Reserve.

15.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Chapter 2 (REFRAD of Reserve Component Commissioned and Warrant Officers), paragraph 2-2 (Separation approval authority), in pertinent part, identifies commanders known as separation approval authorities (SAAs) that are granted the authority to approve certain requests for REFRAD on behalf of the Secretary of the Army.  It identifies commanders of units and installations having general court-martial authority and commanders of personnel centers, training centers, OCONUS replacement depots, and all active Army installations authorized 4,000 or more active duty military personnel as SAAs.  The paragraph states that this authority will not be further delegated without prior approval of the Secretary of the Army.  Chapter 2, Section III of this Army regulation also provides guidance for processing officers for REFRAD due to expiration of active duty commitment and shows this is a voluntary (emphasis added) separation action.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend, in effect, that the applicant’s records should be corrected to show he was returned to active duty in the U.S. Army, effective 28 September 2003; payment of all back pay and allowances due as a result of his reinstatement on active duty; that he was retired from active duty on 30 April 2005 and placed on the retired list, in the grade of LTC (O-5), effective
1 May 2005; and payment of all retired back pay and allowances due as a result of this action because the applicant was improperly REFRAD.

2.  There is no evidence in the applicant’s military service records that shows he was referred to a medical/physical evaluation board or that he was found medically unfit for military service.  In addition, there is no evidence, and records fail to support the applicant’s and his counsel's claim, that the applicant was REFRAD based upon being diagnosed as HIV positive.  Therefore, the applicant and his counsel provide insufficient evidence to support the claim that the applicant was REFRAD “solely by reason of his HIV positive status.”

3.  The evidence of record shows that the applicant was ordered to active duty in a Reserve commissioned officer status on 28 September 2001 and he was honorably REFRAD on 27 September 2003 under authority of Army Regulation 600-8-24, paragraph 2-27a, based on completion of required active service.  At the time, he was credited with completing 2 years, 0 months, and 0 days net active service this period and 16 years, 5 months, and 28 days total prior active service, which equates to 18 years, 5 months, and 28 days total active service. In addition, records show the appropriate SAA processed the applicant’s separation from active duty.  The evidence of record also shows the applicant transferred to U.S. Army Forces Command, Augmentation Detachment 1, Fort McPherson, Georgia on 28 September 2003 and maintained his active status in the USAR.    The evidence of record further shows that the applicant was counseled on his Reserve affiliation and that he placed his signature on his separation document acknowledging he reviewed and verified the information contained on his separation document.
4.  Based on the fact that the applicant was REFRAD on 27 September 2003 (i.e., exactly 2 years after being ordered to active duty) and the reason for his separation was based on completion of required active service, it is reasonable to conclude that Headquarters, U.S. Army Reserve Personnel Command,
St. Louis, Missouri, Orders R-06-373788, dated 25 June 2003 (i.e., that ordered the applicant to be REFRAD on 2 August 2003 and ordered to active duty in the AGR for a period of 3 years on 3 August 2003) were revoked.  In addition, the evidence of record shows the applicant attended pre-separation counseling and indicated he desired information concerning his Reserve affiliation.  Moreover, there is no evidence the applicant was discharged or transferred from an active status (emphasis added) in the USAR or that he was involuntarily released (emphasis added) from active duty.  Thus, the evidence of record refutes the applicant’s and his counsel's claim that the applicant was improperly discharged or transferred from an active status in the USAR or that he was involuntarily released from active duty and should be reinstated on active duty.

5.  The evidence of record shows that the applicant served in the Army as an AG Corps officer for more than 16 years and was serving as a field grade AG officer during the period of service under review.  The evidence of record also shows that the applicant acknowledged he received pre-separation counseling and, in pertinent part, information on his Reserve affiliation.  Based on the applicant’s specialized knowledge and extensive experience as a field grade AG officer, as documented by the 4 Officer Evaluation Reports he provides in support of his application in which he was rated “Best Qualified,” it is reasonable to conclude the applicant was aware of (and capable of researching) the applicable United States Code and Army Regulations governing his military status; thoroughly understood administrative separation processing procedures, and was in a unique position to ensure he was not improperly discharged from an active status in the USAR or involuntarily released from active duty.  In fact, the evidence of record fails to support the applicant’s claim that he was improperly discharged or transferred from an active status in the USAR or that he was involuntarily released from active duty.  Therefore, the applicant is not entitled to be reinstated on active duty.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, the presumption is the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, in view of all of the foregoing, there is insufficient evidence to support the applicant's contention that he was improperly released from active duty and that he should be reinstated on active duty.

7.  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)                                         AR20080013758



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ABCMR Record of Proceedings (cont)                                         AR20080013758



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