IN THE CASE OF:
BOARD DATE: 19 FEBRUARY 2009
DOCKET NUMBER: AR20080015856
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 correction of his records to show that he served in the Individual Ready Reserve (IRR).
2. The applicant states that he should have been in the IRR after being released from active duty; however, he was completely discharged from the military at the expiration of his term of service (ETS) on active duty even though he had a military statutory obligation (MSO) until 17 December 2009. He states that he is attempting to join the New York Army National Guard (NYARNG) and that he is losing time in service. He states that he has been told that he was completely discharged because he did not sign an Oath of Office for the Reserve, although he was never told to sign one. He states that he has moved four times since his ETS and he believes that if a service member is discharged for not signing an Oath of Office, it leaves a large loop hole for those who do not want to be in the IRR.
3. The applicant provides in support of his application, a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).
CONSIDERATION OF EVIDENCE:
1. On 18 December 2001, the applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant (O-1). Effective upon his acceptance in the United States Army Reserve (USAR), he was ordered to active duty for a 4-year commitment. He was transferred to Iraq on 14 March 2003.
2. The applicant was promoted to the rank of first lieutenant (O-2) on 18 June 2003 and he returned to the continental United States on 31 March 2004. He was promoted to the rank of captain (O-3) on 1 April 2005.
3. On 21 August 2006, Orders 233-0251 were published discharging the applicant from the Regular Army effective 27 November 2006. The orders specify that the applicant has an MSO through 17 December 2009 and that an Oath of Office for Reserve appointment would be executed at the time of his discharge. The orders also specify that he may not resign his commission until completion of his MSO and that he should be transferred to the USAR Control Group (Reinforcement).
4. Accordingly, on 27 November 2006, the applicant was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-6, due to miscellaneous/general reasons. The DD Form 214 that he was furnished at the time of his discharge shows that he was transferred to the USAR Control Group (Reinforcement), he had an MSO through 17 December 2009, and that he may not resign his commission until completion of his MSO.
5. A review of the information contained in the interactive Personnel Electronic Records Management System (iPERMS) shows that National Guard Bureau Special Orders Number 9 AR were published on 12 January 2009, extending the the applicant Federal recognition for his initial appointment as a captain in the NYARNG on 22 October 2008.
6. Army Regulation 600-8-24 (Officer Transfers and Discharges) states, in pertinent part, that an officer who requests resignation before completing the 8-year MSO must agree to accept an indefinite appointment the USAR to complete such service obligation. The act of taking the Reserve officer's oath by an Active Army officer is sufficient to simultaneously terminate the officer's Regular Army status by operation of law.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his records should be corrected to show that he served in the IRR.
2. His contentions have been noted. However, he did not serve in the IRR and, therefore, it would not be in the interest of justice to correct his records to include unearned service.
3. The applicant's contention that he was not told to sign an Oath of Office for Reserve appointment has also been noted. However, Orders 233-0251 were published on 21 August 2006 discharging him from the Regular Army and transferring him to the USAR Control Group (Reinforcement). The orders clearly specify that he had an MSO through 17 December 2009 and that an Oath of Office for Reserve appointment would be executed at the time of his discharge. The fact that he may not have been told to sign an Oath of Office did not relieve him of his responsibility to review his orders upon receipt and to address the part that specified that an Oath of Office would be executed at the time of his discharge.
4. The applicant has provided no evidence to show that he was not in possession of the orders discharging him from the Regular Army which provided him instructions on the discharge process and the procedures for Reserve appointment.
5. Additionally, the applicant stated that he was attempting to join the NYARNG. According to the iPERMS, he was extended Federal recognition for his initial appointment as a captain in the NYARNG on 22 October 2008. Therefore, there is no basis for correcting his records to show that he served in the IRR.
6. In order to justify correction of a military record the applicant must show 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.
7. In view of the foregoing, there is no basis for granting the applicant's request.
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.
_________XXX________________
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) AR20080015856
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ABCMR Record of Proceedings (cont) AR20080015856
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