BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090003622 


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 his pay entry basic date as 3 June 1995 instead of 19 February 2005 and his date of rank to captain as 1 July 1999 instead of 19 February 2009.
	
2.  The applicant states, in effect, that he was commissioned in the rank of second lieutenant on 3 June 1995 and promoted to captain on 1 July 1999.  He states he served five years on active duty and thought he was in the Individual Ready Reserve (IRR) for the completion of his military service obligation following his release from active duty in 2000.  He states, in effect, that it was his understanding that he would remain in the IRR until he resigned his commission after completing 8 years of total service.  He also states that he made a conscious decision to never resign his commission because the nation was at war, because he felt a continuing debt to the military since it had rescued his family and him from Vietnam in 1975, and because he wanted to be available to serve again should the nation need him.  He states that he was asked to mobilize with a Special Forces company and he agreed, believing he still had his commission in the IRR.  He states that as he went through the process of mobilizing he learned that the Army had discharged him rather than transferring him to the IRR in 2000.  He states that he pursued the matter and in working with the U.S. Army Human Resources Command (HRC) – St. Louis, MO, he was reappointed in the rank of captain in the Army National Guard (ARNG).  However, he indicates he was given an incorrect pay entry basic date and date of rank because HRC viewed his situation as a break in service although he never resigned his commission.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); an email to him from Major T_____ A_______, dated 26 February 2009, concerning his situation; a printout of his ARNG record; a memorandum, subject: Notification of Mobilization, dated 20 February 2009; promotion orders to the rank of captain, dated 13 March 2009; and separation orders, dated 18 February 2000, in support of this application.

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.  A DA Form 71 (Oath of Office) shows the applicant was commissioned in the rank of second lieutenant in the Regular Army (RA) on 3 June 1995 and entered active duty the same day.
 
3.  U.S. Total Army Personnel Command, Order Number 162-065, dated 11 June 1999 shows the applicant was promoted to the rank of captain with an effective date and date of rank of 1 July 1999.

4.  Headquarters, U.S. Army Combined Arms Center, Fort Leavenworth, KS, Orders 049-0007, dated 18 February 2000 show the applicant was to be discharged from active duty on 3 June 2000.

5.  The applicant's DD Form 214 for the period of active service ending on 3 June 2000 shows he was discharged under the provisions of Army Regulation 
600-8-24 (Officer Transfers and Discharges), paragraph 3-5 which provides, in pertinent part, that any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, or under charges; or any other unfavorable or derogatory action is pending.  Normally, resignations will not be accepted unless on the requested date of separation the officer has fulfilled the service obligation below:
   (1)  Graduates of fully funded commissioning programs must complete the Active Duty Service Obligation (ADSO) incurred by participation in such programs.  However, this obligation may be waived if the monies are recouped.

   (2)  An officer must serve in the Armed Forces until completion of statutory military service obligation (MSO).  Release from active duty (REFRAD) under the provisions of chapter 2 of this regulation does not terminate the MSO.  An officer has an 8-year MSO.  To waive an officer’s MSO, the Assistant Secretary of the Army (Manpower and Reserve Affairs (ASA (M&RA)) must find that the officer has no potential for service under conditions of full mobilization.  Time spent as a cadet at the United States Military Academy or as a Reserve Officers' Training Corps (ROTC) cadet does not count towards fulfilling the MSO.  An officer who requests resignation before completing the 8-year MSO must agree to accept an indefinite appointment in the U.S. Army Reserve (USAR) to complete such service obligation.  The act of taking the Reserve officer’s oath by an Active Army (AA) officer is sufficient to simultaneously terminate the officer’s RA status by operation of law.

   (3)  Service academy graduates and ROTC distinguished military graduates who are released/separated from active duty before completing their ADSO will complete the remaining portion of their ADSO in the Selected Reserve.  This requirement may only be waived by the ASA (M&RA) or delegate.  The Deputy Chief of Staff, G-1 or their delegate will determine if unit positions are available for these officers.

6.  The applicant's DD Form 214 shows "0000 00 00" in item 6 (Reserve Obligation Termination Date); "NA" in item 9 (Command to Which Transferred); "DISCHARGE" in item 23 (Type of Separation); "A[rmy] R[egulation] 600-8-24, PARA[graph] 3-5" in item 25 (Separation Authority); and "FND" in item 26 (Separation Code). 

7.  An email from MAJ A_______, provided by the applicant indicates research showed the applicant was in fact discharged in 2000 in spite of his not completing his 8-year service obligation.  The email then indicated the applicant's time between 2000 and 2009 was considered a break in service.

8.  Headquarters, Maryland Army National Guard, Fifth Regiment Armory, Baltimore, MD, Order 055-019, dated 13 March 2009, shows the applicant was appointed in the ARNG in the rank of captain, effective 13 March 2009.

9.  National Guard Bureau (NGB) Special Orders Number 122 AR, dated 15 May 2009, shows the applicant was extended Federal recognition in the ARNG for the purpose of initial appointment in the rank of captain, effective 14 March 2009.
10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), table 2-2, states that the SPD code of FND denotes miscellaneous/general reasons (unqualified resignation).

11.  In the processing of this case an advisory opinion was obtained from the NGB, Chief, Personnel Division.  The advisory official recommended disapproval of the applicant's request for correction of his pay entry basic date to 3 June 1995.  The advisory official referenced Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 1, paragraph 2 (b) (Computation of Creditable Service), which states in pertinent part that for most members who enter and serve on active duty without a break in service, the basic pay is the date the member enters active or inactive service.  If, however, there is a break in service, then the time between periods of service usually is not included.

12.  The NGB official recommended approval of the applicant's request to have his date of rank adjusted to 1 July 1999.
 
13.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his email response (from Afghanistan) to the NGB advisory opinion the applicant contends, in effect, that had the Army not "mistakenly" discharged him, he would have been assigned to the IRR until he was ordered to active duty for the purpose of mobilization and, therefore, his service would not have been broken.

14.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), chapter 1, Paragraph 9a (7) states a commissioned officer of a regular component who is discharged or who resigns may be appointed as a
Reserve commissioned officer. The appointment will be in the grade, with time in grade for promotion purposes equal to the amount of time in the permanent grade held as a regular officer at the time of discharge or resignation.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends he thought he was in the IRR all along and that it was never his intent to resign his commission, his DD Form 214 indicates he was discharged from the RA because of an unqualified resignation.  His DD Form 214 indicates he had no remaining service obligation at the time of his discharge and reassignment orders show the applicant was to be discharged from active duty on 3 June 2000.  A commissioned officer of a regular component who is discharged or who resigns and chooses to continue military service in a Reserve Component must take the Reserve officer’s oath and be appointed as a Reserve commissioned officer.  Evidence indicates the applicant chose not to do 
so.  Therefore, the applicant's failure to take an oath of office for appointment as a Reserve commissioned officer caused him to have a break in service.  As such, there is an insufficient basis for correcting his records to show he was transferred to the IRR following his discharge from the RA on 3 June 2000 and served continuously in the IRR until his reappointment in the ARNG in 2009.

2.  Evidence indicates that the pay entry basic date and date of rank assigned to the applicant at the time of his reappointment in the Army National Guard are in error.  Therefore, he is entitled to adjustment of these dates in his current National Guard records.

3.  Based on the DOD Financial Management Regulation the applicant's pay entry basic date should be adjusted for his break in service.  Therefore, he is entitled to adjustment of his pay entry basic date to show 12 March 2004 instead of 19 February 2005.

4.  Based on Army Regulation 135-100, chapter 1, his date of rank should be adjusted to credit him with the time served as a captain in the RA.  Therefore, utilizing a reappointment date to captain of 13 March 2009 he is entitled to have his date of rank to captain corrected to show 10 April 2008 instead of
19 February 2009.

5.  Based on the applicant's entitlement to an adjustment to his pay entry basic date he is entitled to any difference in pay that the correction will necessitate.

6.  In view of the foregoing and notwithstanding the advisory opinion, the applicant is entitled to have his records corrected as shown below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  adjusting his pay entry basic date to show 12 March 2004, and

	b.  adjusting his date of rank to captain to show 10 April 2008.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting his pay entry basic date earlier than 12 March 2004 and adjusting his date of rank to captain to a date earlier than 10 April 2008.

3.  The Board further recommends that based on the above corrections, the Defense Finance and Accounting Service (DFAS) should audit the applicant's pay account and pay him the difference in pay, if any, as a result of these corrections.



      ___________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)                                         AR20090003622



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ABCMR Record of Proceedings (cont)                                         AR20090003622



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