IN THE CASE OF:	

		BOARD DATE:	6 October 2009  

		DOCKET NUMBER:  AR20090002918 


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:

	a.  he be awarded credit for qualifying years of service for non-regular retirement as a reinstated officer from the date of his voided discharge to the date of his return to the active Reserve (5 May 2005); and 

	b.  his discharge orders, Orders Number D-08-852440, dated 13 August 1998, be revoked and removed from his official records. 

2.  The applicant states that he was a member of the North Carolina Army National Guard (NCARNG) from 1990 to 1995 and that in January 1995, he resigned from the NCARNG and he was transferred to the U.S. Army Reserve (USAR) Control Group.  He adds that in 1998, he was issued a discharge order from the USAR.  However, he was considered by and selected for promotion to captain (CPT) by the Fiscal Year 2004 (FY04) Special Board (SB) and he was accordingly accessed back into the USAR in May 2005.  

3.  The applicant further states that upon accession, he was notified by an official at the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, that he was ineligible to receive credit for the qualifying years of service for retirement ordered by the FY04 SB because he had been voluntarily discharged in 1998.  However, the official was unable to find any record of a resignation letter that generated this voluntary discharge and the applicant contends the USAHRC official is confusing his January 1995 resignation from the NCARNG as a voluntary resignation from the USAR Control Group in 1998, resulting in the creation of an order discharging him from the USAR, dated 13 August 1998.  

4.  The applicant also states that at the time he resigned from the NCARNG, he specifically requested a transfer to the USAR Control Group.  His request did not include a request to be discharged from the USAR nor did he resign his Federal commission in the USAR.  His 1995 resignation from the NCARNG was limited to his appointment as an officer in the NCARNG under Title 32, U.S. Code and it should not have been applied to his Federal commission as a USAR officer which had been granted under Title 10, U.S. Code.  He concludes that he is currently serving in the NCARNG and desires to complete 20 years of Federal service to qualify for retirement.  

5.  The applicant provides copies of several memoranda and/or letters from the USAHRC, dated 5, 10, and 31 May and 30 July 2005; a copy of Orders
D-08-852440, issued by USAHRC, on 13 August 2005; and a copy of his unqualified resignation letter, dated 22 January 1995, in support of his request.

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.  Having had prior enlisted service in the Regular Army (RA), the applicant’s records show he was appointed as a second lieutenant in the NCARNG and he executed an oath of office on 27 April 1990.  He subsequently entered active duty for training (ADT) on 9 June 1991, completed the Engineer Officer Basic Course, and he was honorably released from ADT to the control of his ARNG unit on 8 October 1991.  He was assigned to the 881st Engineer Company, NCARNG, and he was promoted to first lieutenant on 26 April 1993.  

3.  On 22 January 1995, by letter addressed to the NCARNG Adjutant General, the applicant submitted a request for an unqualified resignation as an officer in 
the NCARNG.  In his request he indicated that he understood that if his resignation was accepted, he would be issued an Honorable Discharge Certificate, and would be transferred to the USAR Control Group (Reinforcement).  

4.  On 1 April 1995, the applicant was honorably discharged from the NCARNG and he was transferred to the USAR Control Group (Reinforcement).  

5.  There is no indication that the applicant was assigned to a Troop Program Unit (TPU) subsequent to his resignation from the NCARNG and transfer to the USAR.  

6.  On 30 July 1998, the applicant was notified that he had been considered by the Reserve Component Mandatory Selection Board for promotion to CPT but he was not selected.  The notification letter indicated that the records reviewed by the selection board did not indicate that he had completed the required civilian and/or military education by the day the board convened on 12 November 1997.

7.  On 4 May 1999, the applicant was notified that he was considered by the Reserve Components Selection Board for promotion to CPT that was convened on 9 November 1998; however, he was not selected.  He was also informed that as a result of his second non-selection, he was required to be discharged in accordance with Title 10, U.S. Code, section 14513 and Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) no later than 1 November 1999.

8.  On 13 August 1998, the U.S. Army Reserve Personnel Command (now known as USAHRC), St. Louis, published Orders D-08-852440, directing the applicant’s honorable discharge from the USAR.  There is no indication in his records if the discharge orders were issued as a result of his non-selection for promotion or as a result of a resignation.  The applicant's official records do not contain a copy of his honorable discharge orders (D-08-852440) from the USAR, dated 13 August 1998.

9.  On 5 May 2005, by memorandum, an official at USAHRC promotion section requested the applicant’s discharge orders be revoked.  The official stated that the applicant had been considered and he was recommended for promotion to CPT by the 2004SS08R Department of the Army (DA) Review Board, which adjourned [sic] (convened) on 5 August 2004.  This board was identified as a Reserve Officer Personnel Management Act (ROPMA) board.

10.  On 10 May 2005, USAHRC-St. Louis, issued a memorandum, subject:  Promotion Consideration, indicating that the applicant had been recommended for promotion to the next higher permanent grade (CPT) by the DA Standby Advisory Board which convened on 5 August 2004 using the 1997 criteria.  The memorandum further contained the following additional remarks:

"Your discharge order has been sent to our Transition Branch to be revoked.  You will receive a copy of the revocation order.  When this action is completed, you will be reacessioned (sic) back into your original IRR [Individual Ready Reserve] Control Group or troop unit from which you were discharged.  You will be credited with retirement points for that period.

Under ROPMA, the earliest date you can have is the approval date of the criteria year that you were recommended under."

11.  On 31 May 2005, the applicant was issued a memorandum, in effect, informing him of his promotion to CPT, effective on 25 June 1998.  

12.  On 17 June 2005, the applicant was transferred from the USAR and he was appointed as a CPT in the NCARNG.  He executed an oath of office on the same date.  He was assigned to the 505th Engineer Battalion. 

13.  An advisory opinion was obtained from the National Guard Bureau (NGB), dated 21 April 2009.  The Chief, Personnel Division, stated that the applicant’s request was returned without action as the discharge order (D-08-852440) was not found in the applicant’s Official Military Personnel File (OMPF) and his NGB Form 23B (ARNG Retirement Point History Statement), dated 3 April 2009, indicates the discharge was revoked as evidenced by his continued service after 13 August 1998.  The applicant was assigned to the USAR Control Group from   1 April 1995 to 17 June 1995 and, as such, the NGB lacks authority to act on any request for this period.  The advisory official also added that a review of the applicant’s NGB Form 23B indicates he was properly awarded retirement credit for the time served from April 1995 to 17 June 2005 while in the USAR Control Group.  However, the NGB Form 23B incorrectly coded his Military Membership Status Identifier (MMSI) as "D1" indicating a USAR Troop Program Unit for the period 1 April 1995 to 26 April 1995, whereas the correct code should read “D4” indicating USAR Control Group (Reinforcement).  The MMSI Code has been corrected to read D4 and his NGB Form 23B was updated.

14.  An advisory opinion was also obtained from USAHRC-St. Louis, on              4 August 2009.  A human resources assistant stated that the applicant resigned his commission on 17 July 1998 and he was discharged as a result of this resignation request.  Therefore, his discharge order is valid and it should not be revoked.
15.  On 25 August 2009, the applicant submitted a rebuttal to the USAHRC-St. Louis advisory opinion.  He stated the following:

	a.  he concurred with the NGB advisory opinion that the NGB lacks authority as he was a member of the USAR Control Group from 1 April 1995 to 17 June 2005 and that his request for credit for qualifying years of service for retirement as a reassessed officer under ROPMA will have to be processed by the USAR Control Group if directed by this Board; however,

	b.  he did not concur with the USAHRC advisory opinion as there is no digital record and history that orders were processed for him and that USAHRC official failed to provide a letter of resignation or other source document used to generate the discharge orders he is requesting be expunged.  He adds that it appears the USAR Control Group incorrectly applied his January 1995 resignation from the NCARNG as a resignation of his Federal commission which resulted in the creation of the discharge order. He further requested the Board ignore USAHRC’s recommendation and conclusion.

16.  ROPMA prescribes the policies and procedures to consolidate and modernize the laws governing the management of Reserve Component officers.  ROPMA specifies that a second lieutenant serve an MYIG (minimum years in grade) of 2 years before promotion to first lieutenant, and a first lieutenant serve a MYIG of 5 years before promotion to captain.  The policies in effect prior to ROPMA required completion of 3 years as a second lieutenant and 4 years as a first lieutenant before promotion to captain.  ROPMA further specified that the officer must be serving in a position requiring the higher grade or assigned to the IRR or an Individual Mobilization Augmentee (IMA) position.  Promotion policy also required completion of the necessary military education (officer basic course) and civilian education (baccalaureate degree).  ROPMA promotion boards for captain were administratively delayed.  Presidential approval of the results of the pertinent promotion boards were also administratively delayed.  Based on normal processing, they should have been convened earlier and approved approximately 100 days after the respective recess dates.

17.  ROPMA further specified that the officer must be serving in a position requiring the higher grade or assigned to the IRR or an IMA position.  Officers serving in the IRR will be promoted on the date they complete their MYIG.  Promotion policy also requires completion of the necessary military education (officer basic course) and civilian education (baccalaureate degree).

18.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) acknowledged that pertinent Army agencies had agreed that the faulty promotion policy for promotion to captain should be revised, and that actions would be initiated for this purpose.  He further stated that affected individuals would be advised they could seek relief from the ABCMR which could adjust DOR’s for those who were first-time considered and selected for promotion to captain, after having served more than 7 combined years as a lieutenant.

19.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion consideration/reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.

21.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded credit for qualifying years of service for non-regular retirement as a reinstated officer from the date of his voided discharge to the date of his return to the active Reserve on 5 May 2005.  He also contends that his discharge orders, dated 13 August 1998, should be revoked and removed from his official records.

2.  The evidence of record shows that the applicant was a member of the NCARNG.  On 22 January 1995, he submitted a request for unqualified resignation and on 1 April 1995 he was honorably discharged from the ARNG and he was transferred to the USAR Control Group (Reinforcement).  It appears that he was assigned to the IRR as there is no evidence he was assigned to a TPU or that he performed any drills.  Furthermore, while in the USAR Control Group, he was twice not selected for promotion to CPT and he was accordingly notified that he would be discharged no later than 1 November 1999.  However, he had been issued a discharge order on 13 August 1998 that directed his discharge from the USAR.  

3.  The applicant’s records further show that he was considered for and he was selected for promotion to CPT by a special board which convened in August 2004 using the 1997 criteria.  Accordingly, on 31 May 2005, he was issued a promotion memorandum indicating that he had been considered and selected for promotion by that board.  The memorandum further contained the additional remarks that his discharge orders had been sent to the USAHRC Transition 
Branch to be revoked; that when this action was completed, he would be accessed back into the TPU or IRR unit from which he was discharged; and that he would be credited with retirement points for that period.  

4.  The applicant's official records do not contain a copy of his discharge orders, dated 13 August 1998.  It appears that these orders were revoked and that both the original discharge order and the revocation order were effectively removed from his official records.

5.  The evidence of record further shows that subsequent to his discharge from the NCARNG, the applicant was transferred to the IRR as evidenced by the fact that he did not earn any drilling points during the period from April 1995 (date discharged from the NCARNG) to May 1998 (date he was discharged from the USAR).  When he was selected for promotion in 2004, he was accessed back into the IRR status from which he was discharged.  As a non-drilling member of the IRR, a member only earns membership points at the rate of 15 points per year.  When the applicant was accessed back to the IRR, he was also credited with 15 membership points from 1998 to 2005 and his Army National Guard Retirement Points History Statement has already been corrected to show these membership points.  He did not qualify for an award of 50 points during this period as he neither performed duties nor was likely to perform duties that would have warranted awarding him 50 points.

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.  As a result, there is insufficient evidence to grant him the requested relief.

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)                                         AR20090002918



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ABCMR Record of Proceedings (cont)                                         AR20090002918



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