IN THE CASE OF:	  

		BOARD DATE:	        22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005565 


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 item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the following language "The period of service under these orders is exempt from the 5-year limit as provided in Title 38, U.S. Code, section 4312." 

2.  The applicant states that pursuant to a memorandum issued by the Office of Secretary of Defense (OSD) on 26 September 2001, titled "Reemployment Protection for Activated Reserve Component Members," that language should be included on his DD Form 214.  He adds that due to a shortage of Judge Advocate General (JAG) officers, he has volunteered to serve on active duty.  However, he would lose protection, and thus his civilian job, under the Uniformed Services Employment and Reemployment Rights Act (USERRA) if he volunteers beyond 5 years unless some of the time is appropriately exempted.  His current tour of active duty (started on 14 April 2008) qualifies for the exemption, but the appropriate language is not inserted.  As this is a long war and as the Army suffers a shortage of JAG officers who are leaving the service due to the high operational tempo (OPTEMPO), the Board should find it appropriate to correct his DD Form 214 so that it properly reflects that the service is exempt from the  5-year limit.  This way, he can continue to serve his country and not worry about losing his civilian job because he exceeded the 5-year limit under USERRA.

3.  The applicant provides a copy of his DD Form 214, dated 24 June 2007, and a copy of the referenced OSD memorandum, dated 26 September 2001, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 8 June 1988.  He subsequently entered active duty for training (ADT) on 29 March 1989 and completed the Quartermaster Officer Basic Course.  He was honorably released from ADT to the control of his USAR unit on 3 August 1989.  His records also show he served in various command and staff positions and was promoted to captain on 23 May 1995.

2.  On 14 March 2004, the applicant was ordered to active duty under the provisions of Title 10, U.S. Code, 12301(d) for a period of 179 days for the purpose of contingency operations temporary tour of active duty (COTTAD) in support of Operation Enduring Freedom (OEF) and subsequently served in various locations, including Bahrain, Qatar, Afghanistan, and Uzbekistan.  He was honorably released to the control of his USAR unit on 8 September 2004.  The DD Form 214 he was issued shows he completed 5 months and 25 days of creditable active service.  Additionally, item 18 shows the entry "Ordered to active duty in support of Operation Enduring Freedom IAW (in accordance with) 10 USC [Title 10, U.S. Code, section] 12304." 

3.  On 14 July 2005, the U.S. Army Human Resources Command (HRC), St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.   

4.  On 15 October 2005, the applicant was transferred from the USAR to the Montana Army National Guard (MTARNG) in the rank of major.  He subsequently completed the JAG Officer Basic Course on 23 June 2006.  He was assigned to the Joint Forces Headquarters, MTARNG, Fort Harrison, MT.

5.  On 18 November 2006, the applicant was ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(d) for a period of 7 months and
7 days for the purpose of contingency operation for active duty operational support (COADOS) in support of OEF.  He subsequently served in Cuba from
9 December 2006 to 9 June 2007 and he was honorably released to the control of his ARNG unit on 24 June 2007.  The DD Form 214 he was issued shows he completed 6 months and 1 day of creditable active service.  Additionally, item 18 shows the entry "Ordered to active duty in support of Operation Enduring Freedom IAW 10 USC 12301."


6.  On 14 April 2008, the applicant was ordered to active duty for operational support (ADOS) under the provisions of Title 10, U.S. Code, section 12301(d) for a period of 365 days, terminating on 13 April 2009.  He was assigned to Letterkenny Army Depot, Chambersburg, PA.

7.  On 14 April 2009, HRC-St. Louis published Orders A-03-803679A01 amending the applicant’s period of active duty from 365 days terminating on 13 April 2009 to 779 days terminating on 2 June 2010.  A DD Form 214 will be issued at the time the applicant completes his period of active duty.

8.  The applicant submitted a copy of the referenced OSD memorandum, dated
26 September 2001, which essentially states that:

	a.  USERRA provides broad reemployment protections for members of the armed forces following periods of military service.  However, there is a limit as to how long an employee can be absent from his/her civilian job to perform military duty and retain his/her reemployment rights; 

	b.  Title 38, U.S. Code, section 4312(c) sets a 5-year limit for retaining reemployment.  However, certain duty is exempt from the 5-year limit.  Section 4312(c)(4)(A) exempts service when involuntarily ordered to active duty under Title 10, U.S. Code, section 12302.  Additionally, Title 10, U.S. Code, section 4312(c)(4)(B) exempts service for those members "ordered to or retained on active duty (other than for training) under any provision of law because of war or national emergency";

	c.  Department of Defense Instruction (DODI) 1205.12 implements USERRA.  Paragraph 6.6 of the Instruction requires the Secretaries of Military Departments to make an exemption determination for those periods of active duty when a service member is ordered to, or retained on, active duty (other than for training) under any provision of the law because of war or national emergency.  The Instruction further states that if the Secretary determines that the purpose of the order to, or retention on, active duty is for the direct or indirect support of the war or national emergency, then the order of the service member should be so annotated, since the period of service is then exempt from the 5-year cumulative service limit; and

	d.  With Presidential Proclamation 7463, dated 14 September 2001, that declared a "National Emergency by Reason of Certain Terrorist Attacks," it would be appropriate to make a determination that the period of service performed by members who volunteer for active duty under Title 10, U.S. Code, section 12301(d) to support missions and operations associated with the national 
emergency is exempt from USERRA 5-year limit.  If such a determination is 
made, it would be helpful for the affected service member to have a statement included in the order that "the period of service under those orders is exempt from the 5-year limit as provided in Title 38, USC, section 4312(c)(4)(B)."

9.  Title 10, U.S. Code, section 12301(d) provides that at any time, an authority designated by the Secretary concerned may order a member of a Reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member.  However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.

10.  Title 38, U.S. Code, section 4312(c)(4)(A) provides that any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person's employer; the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed 5 years; and except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e).  This subsection shall apply to a person who is absent from a position of employment by reason of service in the uniformed services if such person's cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks reemployment, does not exceed 5 years, except that any such period of service shall not include any service performed by a member of a uniformed service who is ordered to or retained on active duty under section 688, 12301(a), 12301(g), 12302, 12304, or 12305 of title 10 or under section 331, 332, 359, 360, 367, or 712 of title 14, or ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress as determined by the Secretary concerned.

11.  Army Regulation 600-8-105 (Military Orders) prescribes policies and mandated tasks governing military orders as a multifunctional program.  Chapter 14 of this regulation states, in pertinent part, that at any level of graduated mobilization response, the Active Army strength may be expanded or augmented by various categories of personnel.  Table 14–2 contains order formats for ARNG and USAR personnel.  These order formats are used to call individual Reserve Components and units to active duty.  Formats 150, 153, 160, 162, 164, and 550 will be used for ARNG or USAR personnel only.  Format 162 is used for Active Duty of ARNG or USAR personnel for short periods with a specific purpose.  

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.   Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the Remarks block is used for Headquarters, Department of the Army (HQDA) mandatory requirements when a separate block is not available and as a continuation of items 11 (Specialty), 13 (Awards), or 14 (Military Education).  For a Reserve Soldier ordered to active duty and deployed to a foreign country, three statements are required to be entered in item 18:  "Ordered to active duty in support of (Operation Name) per Title 10, U.S. Code, applicable section"; "Service in (Name of County Deployed) from (inclusive dates for example, YYYYMMDD – YYYYMMDD)"; and "Soldier completed period for which ordered to active duty for the purpose of post-service benefits and entitlements." 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show language that reads “The period of service under these orders is exempt from the 5-year limit as provided in Title 38, U.S. Code, section 4312.”

2.  The applicant was ordered to active duty under Title 10, U.S. Code, section 12301 on three separate occasions as follows:

	a.  on 14 March 2004, under Title 10, U.S. Code, section 12301(d) for a period of 179 days for the purpose of CO-TTAD in support of OEF.  This order correctly shows the authority for his active duty as Title 10, U.S. Code, section 12301(d) and 12314.  Additionally, his DD Form 214, dated 8 September 2004, for this period of active duty correctly shows the three required statements; 

	b.  on 18 November 2006, under Title 10, U.S. Code, section 12301(d) for a period of 7 months and 7 days for the purpose of CO-ADOS in support of OEF.  This order also correctly shows the authority for his active duty as Title 10, U.S. Code, section 12301(d) and 12314.  Additionally, his DD Form 214, dated
24 June 2007, for this period of active duty correctly shows the three required statements; and


	c.  on 14 April 2008, under Title 10, U.S. Code, section 12301(d) for a period of 779 days for the purpose of ADOS.  This order also correctly shows the authority for his active duty as Title 10, U.S. Code, section 12301(d) and 12314.  Additionally, his DD Form 214 has not been issued as the period of active duty terminates in a future date.

3.  There is no provision in the Army regulation to list the requested language on the DD Form 214.  The DOD memorandum does not mandate an entry on the DD Form 214; it requires the order to be properly annotated, and in the applicant’s case, all his orders to active duty are properly annotated with the proper authority.  There is neither an error nor an injustice. 

4.  The ABCMR can correct a record to remedy an error or an injustice.  However, the applicant has not shown any error or injustice in his case.  USERRA, through Title 38, U.S. Code, section 4312(C)(4)(B) already provides him protection.  In view of the foregoing, there is insufficient evidence to correct the applicant’s previously-issued DD Forms 214. 

5.  Nevertheless, in order to prevent any future issues/problems with civilian employers, it would be appropriate to amend Orders A-03-803679, issued by USAHRC, on 3 March 2008 to add the following statement to the additional instructions:  "The period of service under these orders is exempt from the 5-year limit as provided in Title 38, U.S. Code, section 4312." 

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 all Department of the Army records of the individual concerned be corrected by amending Orders A-03-803679, issued by USAHRC, on 3 March 2008 to add the following statement to the additional instructions:  "The period of service under these orders is exempt from the 5-year limit as provided in Title 38, U.S. Code, section 4312." 

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 correcting item 18 of his DD Form 214.




      _________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)                                         AR20090005565



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