IN THE CASE OF:	 

		BOARD DATE:	  17 March 2009

		DOCKET NUMBER:  AR20080013820 


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 mandatory removal date (MRD) be corrected to reflect a 3 year and 2 month break in his commissioned service so he can continue to serve in the U.S. Army Reserve (USAR).  

2.  As an alternative, the applicant requests that his original appointment as a Judge Advocate General Corps Reserve Officer be corrected to reflect his appointment in the rank of lieutenant colonel with a date of rank (DOR) as of the date of his appointment, that he receive back pay and allowances based on the corrected rank, and that a special promotion board be convened to consider him for promotion to colonel.

3.  The applicant states that Department of Defense Instruction (DODI) 1215.07 (Service Credit for Reserve Retirement) paragraph 6.1.3 specifically provides that transfer to an inactive status list constitutes a break-in-service.  He states it is an injustice to deny him credit for his inactive commissioned service for purposes of appointment rank and promotion opportunity, but include the same periods in calculating the maximum length of time he is permitted to serve in the USAR.

4.  The applicant provides, in support of his application, copies of six pages from his official military personnel file, a letter from U.S. Army Reserve Personnel Command (now known as Human Resources Command [HRC]), St Louis, Missouri; his letter to U.S. Army Reserve Command, Fort McPherson, Georgia; a letter from Headquarters, 99th Regional Readiness Command (RRC), Coraopolis, Pennsylvania; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 18 June 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records from his service in the U.S. Air Force Reserve (USAFR) were not available for review.  Information concerning his USAFR service was taken from his memorandum to the U.S. Army Reserve Command, dated 15 June 2008.

2.  The applicant was commissioned a second lieutenant in the USAFR 
on 10 March 1980 and was ordered to active duty.  He was promoted to captain on 10 March 1984.  On 29 February 1992, he was involuntarily released from active duty due to not being selected for promotion (twice).  He had completed
11 years, 11 months, and 19 days of active service that was characterized as honorable.  He was transferred to the USAFR Inactive Ready Reserve (IRR).

3.  On 4 September 1992, the applicant was transferred from Headquarters, Air Reserve Personnel Center (ARPC) Inactive Status List Reserve Section (ISLRS) to the USAFR Active Reserve.  There are no orders available assigning the applicant to ARPC, ISLRS.  He was promoted to major on 10 March 1994.  

4.  In his statement to U.S. Army Reserve Command, dated 15 June 2008, the applicant stated that on 16 April 1998, he was voluntarily transferred to the USAFR IRR.  The applicant was reassigned to Headquarters, ARPC (ISLRS) effective 15 March 2000.  There are no orders available that show when he was transferred out of this status.

5.  The applicant's official military personnel file (OMPF) includes his DA Form 61 (Application for Appointment), dated 20 August 2002.  Item 27 (Active Military Service) shows he entered a period of service in the USAF from 7 June 1979 to 
9 March 1980 in pay grade E-5.  He also entered a period of commissioned service from 10 March 1980 to 29 February 1992.  In Item 28 (Reserve or National Guard Service) he entered a period of service in the USAF from
4 September 1992 to 15 March 1998.

6.  A memorandum, dated 1 May 2003, from HRC appointed the applicant a commissioned officer in the USAR effective on his acceptance.  He was appointed a major with 3 years, 11 months, and 16 days (apparently of constructive service credit) as of 1 May 2003 in the Judge Advocate General Corps.  He accepted the appointment and was sworn in as a major on 13 May 2003.  There is no indication in the letter as to how the service credit for his DOR was computed.
7.  U.S. Total Army Personnel Command Orders C-06-314414, dated 2 June 2003, assigned the applicant to a troop program unit effective 13 May 2003.  These orders show the applicant's DOR as 13 May 2003.

8.  A memorandum, dated 5 June 2003, from U.S. Army Reserve Personnel Command corrected the applicant's DOR for major.  The memorandum shows the corrected DOR as "1990515."  This appears to be a typographical error in that the date should contain 8 digits.  Based on the service credit received in the appointment letter this entry should read 19990515 (15 May 1999).

9.  A memorandum, dated 12 January 2006, notified the applicant that he was not selected for promotion by the Department of the Army Reserve Components Mandatory Selection Board that convened on 13 September 2005.  According to the memorandum, the applicant had not completed the required civilian and/or military education by the day the board convened.

10.  HRC Orders B-10-607758, dated 13 October 2006, promoted the applicant to lieutenant colonel effective 16 September 2006.  He served a period of active duty from 15 October 2006 to 18 June 2007.

11.  The applicant was transferred to the Retired Reserve effective 1 April 2008 by reason of having reached his maximum authorized years of service.  Based on his initial commissioning date of 10 March 1980, the applicant had completed 
28 years of commissioned service on 10 March 2008.

12.  In his memorandum to the U.S. Army Reserve Command, dated 15 June 2008, through Headquarters, 99th RRC the applicant requested a correction to his MRD.

13.  On 22 August 2008, 99th RRC returned the applicant's request for extension of his MRD without action.  The applicant was advised that the Assistant Secretary of the Army (Manpower and Reserve Affairs) must first determine if there is a shortage throughout the USAR in a particular grade, area of concentration, and competitive category.  He was also advised that established selective continuation policies to meet the needs of today's USAR have negated the need for a selective continuation board.

14.  Title 10, U.S. Code, section 14507, Removal from the reserve active-status list for years of service, states that for Lieutenant Colonels and Commanders, unless continued on the reserve active-status list or retained under other provisions of law, and who are not on a list of officers recommended for promotion to the next higher grade, shall (if not earlier removed from the reserve active-status list) be removed from the active-status list on the first day of the month after the month in which the officer completes 28 years of commissioned service.

15.  Paragraph 6.1 of DODI 1215.07 provides the criteria for establishing the service requirement for a satisfactory year of service for non-regular retirement.  Paragraph 6.1.2 provides that an anniversary year is the full-year period used for the crediting of qualifying years for non-regular retirement.  Paragraph 6.1.3 provides for adjustments to an anniversary year.  Paragraph 6.1.3.1 provides that the start date for each successive anniversary year will be adjusted if the member has a break-in-service, such as a transfer to the inactive status list.  As such, an individual's MRD would be calculated by subtracting all time spent in an inactive status.

16.  Table 3-3 (Appointment Grades) of Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) provides that an applicant for appointment with more than 14 years but less than 21 years of commissioned service credit will be appointed in the grade of major.

17.  DODI 1312.03 (Service Credit for Commissioned Officers), Section 6.1 (Entry Grade Credit) provides that the entry grade and date of rank or promotion service credit in grade of a commissioned officer (other than an officer in the health professions) shall be determined by the entry grade credit awarded upon appointment.  The entry grade credit that is awarded shall be the sum of the prior commissioned service allowed and the amount of constructive service credit allowed.  A period of time shall be counted only once when computing credit.  

18.  Section 6.1.3 (Maximum Entry Grade Credit) of DODI 1312.03 also provides that the total entry grade credit granted, except for a health professional officer, shall be no more than that required for the person to receive an entry grade of major or lieutenant commander.  This limitation may be waived by the Secretary of the Military Department concerned in individual cases if there are significant reasons to appoint a person in a higher grade.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that paragraph 6.1.3 of DODI 1215.07 specifically provides that transfer to an inactive status list constitutes a break-in-service.  He states it is an injustice to deny him credit for his inactive commissioned service for purposes of appointment rank and promotion opportunity, but include the same periods in calculating the maximum length of time he is permitted to serve in the USAR.

2.  As provided in DODI 1215.07 an individual's MRD is adjusted by subtracting all time spent in an inactive status.  The evidence shows the applicant appears to have had two periods wherein he was in an inactive status.  However, there are no orders placing him in an inactive status in 1992 and no orders terminating the inactive status he was placed in effective 15 March 2000.  Therefore, without the exact time spent in an inactive status there is insufficient evidence to adjust the applicant's MRD.

3.  All orders assigning the applicant to an inactive status and all orders terminating that status may be submitted to Personnel Actions and Services Directorate, HRC-STL where the applicant's MRD may be adjusted administratively.

4.  The total amount of commissioned service listed by the applicant on his application, dated 20 August 2002, for a commission in the USAR was 17 years, 6 months, and 1 day.  Therefore, based on Table 3-3 of Army Regulation 
135-100 his appointment grade would be major.  

5.  Under the provisions of DODI 1312.03 the applicant would not have received an entry grade greater than that of a major without a waiver from the Secretary of the Military Department (in this case the Department of the Army).  There is no evidence of a waiver having been requested by the applicant or approved by the Department of the Army.  Therefore, the applicant's entry grade of major is determined to be 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.

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)                                         AR20080013820



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ABCMR Record of Proceedings (cont)                                         AR20080013820



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