BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090005577 


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 his Mandatory Removal Date (MRD) be corrected to exclude the years 1984 to 1988.

2.  The applicant states that after completing the Officer Basic Course in 1982, he traveled overseas for schooling in 1983.  He argues that he informed the Human Resources Command, Saint Louis of his plans and he was assigned to the Individual Ready Reserve (IRR).  He contends that during his studies abroad he was reassigned to a Troop Program Unit (TPU) without his knowledge.  After finishing his studies in 1984, he returned to the United States and contacted the Human Resources Command, Saint Louis for a new assignment.  It was then he learned about the TPU assignment and that the TPU assignment placed him in a technical position for which he was not qualified.  

3.  The applicant states he tried to get reassigned to a more appropriate position but his unit would not release him.  After repeated attempts to resolve the error, the case was finally sent to an administrative separation board, which ruled in his favor.  However, by the time the case was settled, he had lost four years during which he was unable to train, participate, or contribute in a meaningful way.  

4.  The applicant states he submitted a DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552) in 1988 but his request was never acted on and he never received a response.


5.  The applicant states that even though he could not participate effectively during the four years in question, he continued to serve in the military after the case was settled but this uncorrected injustice will represent a loss of experience and expertise for the United States Army.

6.  The applicant further states that he is a Strategic Intelligence Analyst and has much to contribute to the defense of the United States.  He is a subject matter expert in terrorist organizations and can continue to contribute during the ongoing war.  He concludes that he is a dedicated officer highly motivated to continue his contributions to the national security effort.

7.  The applicant provides a DD Form 149, dated 9 June 1988; four third-party letters of recommendation; and three Officer Evaluation Reports 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.  The applicant enlisted in the United States Army Reserve (USAR) on 13 June 1978 for a period of 6 years.  On 9 May 1981, at age 20, he was discharged from his enlisted status for the purpose of accepting a commission in the USAR.  

3.  The applicant completed the oath of office appointing him a second lieutenant, USAR, on 10 May 1981.  He completed the Intelligence Officer Basic Course on 6 August 1982.

4.  An AGUZ Form 871 (Computation Sheet) shows the applicant's date of birth as 13 October 1960, his initial appointment date as 10 May 1981, and his MRD as 9 May 2009.

5.  The applicant's Chronological Statement of Retirement Points shows that for retirement year ending (RYE) 12 June 1984 he earned 15 retirement points; for RYE 12 June 1985 he earned 37 retirement points; for RYE 12 June 1986 he earned 15 retirement points; for RYE 12 June 1987 he earned 15 retirement points; and for RYE 12 June 1988 he earned 27 retirement points.

6.  On 9 June 1988, the applicant prepared a DD Form 149.  In that application, he requested, in part, that he receive credit for retirement points for the period    5 May 1984 to 10 April 1988.  He contended that he was unable to accomplish any military activity during the period in question.  Documents submitted with the 
application corroborated the same arguments the applicant currently makes as to why he could not train during this period.  There is no record that the Board received the application.  

7.  The applicant was promoted to lieutenant colonel effective 13 March 2006.  

8.  On 29 June 2009, the applicant was transferred to the Retired Reserve due to maximum authorized years of service.

9.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides, with some exceptions, for the separation of majors, lieutenant colonels, and colonels for maximum age and/or service.  It specifies that first lieutenants, captains, majors, and lieutenant colonels may not exceed 28 years of commissioned service, if under age 25 at initial appointment.

10.  Army Regulation 140-10 defines "active status" as the status of an Army National Guard of the United States or USAR commissioned officer, other than a commissioned WO, who is not in the inactive Army National Guard, in the Standby Reserve (Inactive List), or in the Retired Reserve.

11.  Title 10 (Armed Forces), U. S. Code, section 14507 (Removal from the reserve active-status list for years of service:  reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy) provides, in pertinent part, that a commissioned officer who holds the grade of lieutenant colonel and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

12.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states, in pertinent part, that a Soldier in the Selected Reserve or the Individual Ready Reserve may earn retirement points for completing Army correspondence courses.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his MRD should be corrected to exclude the years 1984 to 1988 has been carefully considered and found to be without merit.

2.  The applicant was 20 years of age when he was appointed as a commissioned officer in the USAR effective 10 May 1981.  His active status as a commissioned officer from 10 May 1981 to the date of his separation on 29 June 2009 was continuous, uninterrupted, and qualifies as creditable service.  

3.  The applicant earned membership points towards retired pay during the period in question.  It is acknowledged that he did not know he had been assigned to a TPU and believed he was still in the IRR until he returned to the United States and discovered otherwise.  It is acknowledged that he could not train with his TPU.  However, he still had ways of earning retirement points.  He could have completed correspondence courses.   

4.  In addition, in 1988 the applicant prepared an application to this Board requesting the exact opposite of what he now requests.  In 1988, he requested that he be granted retirement point credit for the period 5 May 1984 to 10 April 1988 because he was unfairly prevented from training.  This is the same period of time that he now requests be determined to be inactive service.  While it appears that the 1988 application never arrived at this Board (and if the applicant never received a response, it was his responsibility to inquire about the status of his application in a timely manner), the fact remains that he now requests the exact opposite of what he requested at the time.  

5.  The present-day chance of a job opportunity (especially in light of the fact the applicant could possibly get this same job opportunity as a retiree recall) is not compelling evidence to show why the requested relief should be granted. 

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)                                         AR20090005577





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ABCMR Record of Proceedings (cont)                                         AR20090005577



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