IN THE CASE OF:	  

		BOARD DATE:	       26 August 2009

		DOCKET NUMBER:  AR20090002604 


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 3 years be added to his mandatory removal date (MRD).

2.  The applicant states, in effect, that he was in the seminary during the period 31 August 1985 to 30 August 1988 and that this 3-year period of service should not count toward his MRD.  He states that his Reserve Officers' Training Corps (ROTC) contract was for 6 years ending on 30 August 1985 and that he was never removed from the service.

3.  The applicant further states that he initially submitted his request to correct his military record to the Army Board of Correction of Military Records (ABCMR) on 11 October 2008.  On 18 December 2008, the staff at the ABCMR returned his application to him stating, in effect, that he had received an extension to his MRD from the Office of the Chief of Chaplains.  In his second application, he states, in effect, that his chaplain branch manager thought he could get 3 more years added to his MRD because his ROTC contract only obligated him to August 1985 and that he was in his master's and doctorate program from 1985 to 1988.  He concludes by stating the 45 points (membership points at 15 points per year) can be removed from his "lost" years when he was in the Individual Ready Reserve (IRR).

4.  The applicant provides a copy of his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 13 October 2008, and a copy of DA Form 597 (Army Senior ROTC Student Contract), dated 7 September 1977, in support of his application.
CONSIDERATION OF EVIDENCE:

1.  On 7 September 1977, the applicant enlisted in the U.S. Army Reserve for a 6-year period of service as an ROTC cadet.  In his enlistment contract, he agreed to serve 3 years on active duty and then 3 years in the Ready Reserve.

2.  On 31 August 1979, the applicant was appointed a commissioned officer in the grade of second lieutenant in the U.S. Army Reserve for an indefinite term.  He was commissioned into the Signal Corps.

3.  On 28 September 1979, the applicant entered active duty and was awarded the area of concentration 27B (Communications Electronics Systems Engineer).

4.  On 27 September 1982, the applicant was honorably released from active duty upon completion of his required service and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he completed 3 years of active federal service and attained the rank of first lieutenant/pay grade O-2.

5.  On 18 May 1985, the applicant received a master of divinity degree and then he received a master of theology degree on 17 May 1986.

6.  On 3 July 1991, the applicant accepted an appointment in the Army Reserve in the grade of captain in the Chaplain Corps for an indefinite term.

7.  On 9 January 1992, he completed the Signal Officer Advanced Course (Reserve Component).

8.  On 1 May 1993, he received a doctorate degree in philosophy.

9.  On 17 March 2005, he was promoted to colonel in the Army Reserve, which established his MRD as 30 August 2009, 30 years after his initial appointment as a commissioned officer.

10.  On 11 June 2008, the Department of Army Chief of Chaplains extended the applicant's MRD to 30 August 2011 under the provisions of Army Regulation 
140-10 (Army Reserve Assignment, Attachments, Details, and Transfers).

11.  The applicant's ARPC Form 249-E, dated 13 October 2008, shows the applicant was only credited with membership retirement points from his date of separation from the Active Army on 27 September 1982 until his retirement year 
ending (RYE) date of 30 August 1989.  This statement shows he earned 61 retirement points for his RYE date 30 August 1989.  This same statement shows that he was credited with 20 qualifying years for nonregular retirement from 31 August 1988 to 30 August 2008.

12.  Title 10, U.S. Code, section 14706 (computation of total years of service), states that for the purpose of this chapter and chapter 14507 of this title, a Reserve officer's years of service include all service of the officer as a commissioned officer of a uniformed service other than the following:

	a.  service as a warrant officer;

	b.  constructive service; and

	c.  service after appointment as a commissioned officer of a Reserve Component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.

13.  This section stipulates that exclusion under this subsection does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service preceding the member's service in a student status.  An officer shall be considered to be in a professional specialty if the officer is appointed or assigned to the Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Service Corps, the Nurse Corps, or the Army Medical Specialists Corps, or is designated as a chaplain or judge advocate.

14.  Army Regulation 140-10 provides in pertinent part for the removal of non-obligated Soldiers of the IRR for refusal to accept an assignment to a U.S. Army Reserve unit or an Individual Mobilization Augmentee (IMA) position.  Officers who have 5 continuous years of IRR service without assignment or attachment to an U.S. Army Reserve unit or IMA position are eligible for involuntary removal from the Ready Reserve.  Officers who are notified of an appropriate assignment or attachment and decline the offered assignment or attachment are involuntarily separated.

15.  Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers) provides policy, criteria, and procedures for the separation of officers of the Army National Guard and the Army Reserve.  In pertinent part it provides for the means and procedures governing the submission of unqualified resignations as Reserve officers of the Army.  An obligated officer will not be permitted to resign his or her office until the obligated period of service is completed.  A non-obligated officer may submit his or her resignation except for those officers that are under investigation, in time of war or national emergency declared by Congress, or when Department of the Army restricts the acceptance of such resignations due to a national emergency proclaimed by the President.

16.  Army Regulation 140-10 provides policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  In pertinent part it provides for the retention of chaplains until age 60 when otherwise qualified with retention authorization in 2-year increments to meet the needs of the Total Army.  The Chief of Chaplains for the Department of the Army is the approval authority for such extensions.

17.  In the processing of this case, the staff of the Board obtained an advisory opinion from the Office of the Chief of Chaplains for the Army Reserve.  The advisory opinion states, in effect, that the applicant was never informed that he needed to resign his commission to be removed from the IRR.  Instead the applicant thought he should have been discharged from the Army Reserve upon the completion of his military service obligation on 30 August 1985.  As the applicant did not resign his commission, he was retained on the rolls of the IRR while he pursued his master's degree in theology.

18.  The advisory opinion continues with an excerpt from Title 10, U.S. Code, section 14706, that provides in pertinent part for the appointment as a commissioned officer of a Reserve Component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.  This exclusion does not apply to service performed by an officer who previously served on active duty or as a member of the Ready Reserve in other than a student status for the period of service preceding the officer's service in a student status.

19.  Enclosed in the advisory opinion was a copy of a memorandum, dated 20 December 2004, signed by the Director of Military Personnel Management for the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs.  This memorandum interprets Title 10, U.S. Code, section 14607, for officers accessed for service as a chaplain, to mean that any service after appointment as a Reserve component commissioned officer while the officer is in an Army program of advanced education to obtain their first professional degree required for appointment as a chaplain will be excluded from their computation of years of service for MRD purposes.  The memorandum adds that this policy does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service preceding the member's service in a student status.

20.  The applicant was provided a copy of the advisory opinion, but did not respond by the established suspense date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that since he should have been separated when he completed his military service obligation on 30 August 1985, the 3 years of service from 31 August 1985 to 30 August 1988 should not count toward his MRD for he was in the advanced professional studies for the chaplaincy program.

2.  While the applicant believes he should have been separated when he completed his military service obligation, he did not take into consideration that his appointment as a commissioned officer in the U.S. Army Reserve was for an indefinite period.  While the applicant could have resigned his commission in 1985 since he had completed both his active and inactive military service obligation on 30 August 1985, the applicant did not resign his commission and remained a member of the IRR.  However, if he had resigned his commission it would have severed his ties with the Army and would have resulted in him having a break in service which would have changed his pay entry basic date.

3.  The applicant served 3 years of active duty as a commissioned officer prior to earning his advanced degrees.  As such, the time the applicant spent in his masters programs is not excluded from calculating his MRD under Title 10, U.S. Code, section 14706.

4.  The Chief of Chaplains appropriately extended the applicant's MRD to meet the Total Army chaplain requirements.  The applicant can continue to request 2-year extensions from the Chief of Chaplains until he reaches his maximum years of service based on established age limitations.



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)                                         AR20090002604



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ABCMR Record of Proceedings (cont)                                         AR20090002604



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