IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090006206 


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 his retirement election be changed from REDUX to High 3 by allowing him to repay his Career Status Bonus (CSB).

2.  The applicant states he would never have chosen REDUX/CSB if he had not received a "career ending" officer evaluation report (OER).  He states he received a "career ending" OER in December 2004 and was subsequently passed over for promotion by the FY-05 Army Medical Department (AMEDD) major (MAJ) promotion selection board (PSB).  He states he selected REDUX/CSB for a 20 year service obligation to prevent involuntary separation in November 2005.  

3.  The applicant provides, in support of his application, copies of his CSB election, his Record of Proceedings from the Officer Special Review Board (OSRB), Page 1 and 2 of 3 pages of his DD Form 2839 (Career Status Bonus (CSB) Election), and a letter from the Defense Finance and Accounting 
Service (DFAS).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 15 January 1987.  He then enlisted in the Regular Army on 12 February 1987.  He had no military status prior to 15 January 1987.  He was released from active duty on 5 July 1991 due to the expiration of his term of service.  He had completed 4 years, 4 months, and 24 days of active service that was characterized as honorable.
2.  The applicant enlisted in the Colorado Army National Guard on 29 September 1992 and on 23 August 1993 transferred to the USAR as a cadet in the Reserve Officer Training Corps (ROTC) Program at the University of Colorado.  On 
18 May 1995, he received an appointment as a second lieutenant as a Reserve Commissioned Officer of the Army in the Medical Service Corps, effective the date of his acceptance.  On 18 May 1995, he took the oath of office as a second lieutenant in the USAR.  He was ordered to active duty effective 21 May 1995 for a period of 4 years in the Medical Service Corps.  On 5 July 1995, he took the oath of office as a second lieutenant in the Regular Army, Medical Service Corps.

3.  On 1 June 1999, the applicant was promoted to captain.

4.  The applicant received an OER for the period from 8 May 2004 to 
31 December 2004.  The applicant states this was a "career ending" OER.

5.  The applicant was not selected for promotion by the FY-05 AMEDD MAJ PSB.

6.  On 28 October 2005, the applicant elected the REDUX and to receive the CSB payment and agreed to remain on continuous active duty, subject to Service regulations, until he attained a minimum of 20 years of such service.  He acknowledged he understood that if he failed to complete such service he would be required to repay a share of the total bonus payment.  He acknowledged he understood that once his election was effective it may not be revoked.  He elected to receive a lump sum payment of $30,000.

7.  On 21 February 2006, U.S. Army Human Resources Command (HRC), Alexandria, VA notified the applicant he was not selected for promotion by the FY-06 AMEDD MAJ PSB.  HRC also advised the applicant that as a twice non-selected officer he was considered and recommended for continuation on active duty for a 3-year period.  The applicant acknowledged his selective continuation on active for a period of 3 years and indicated he did desire to remain on active duty as a result of his selective continuation.

8.  The applicant was not selected for promotion by the FY-07 AMEDD MAJ PSB.

9.  On 19 June 2007, the applicant appealed to the OSRB requesting his OER for the period from 8 May 2004 to 31 December 2004 be removed from his official military personnel file and to be reconsidered for promotion by the FY-05 AMEDD MAJ PSB.

10.  On 15 April 2008, the OSRB determined the OER for the period from 8 May 2004 to 31 December 2004 and all allied documents were to be removed from the applicant's Performance Folder.  The OSRB determined the applicant did not warrant reconsideration by the FY-05 AMEDD MAJ PSB because the PSB did not see the contested OER.  The OSRB determined that promotion reconsideration by the FY-06 and FY-07 AMEDD MAJ PSB was warranted.

11.  HRC Order Number 050-066, dated 19 February 2009, promoted the applicant to the grade of major with an effective date and date of rank of 
1 February 2009.  HRC Order Number 070-001, dated 11 March 2009, amended the applicant's effective date and date of rank to read 1 March 2006.  This indicates he was promoted using the FY-06 AMEDD MAJ PSB criteria.

12.  A letter, dated 10 March 2009, from DFAS to the applicant's Congressional representative advised the representative that DFAS did not have the authority to grant the applicant's request to repay his CSB and referred the applicant and his Congressional representative to the ABCMR.

13.  In the processing of this case, an advisory opinion, dated 28 April 2009, was provided by Headquarters, Department of the Army, Deputy Chief of Staff, G1 (personnel officer).  

14.  G1 stated it was not their decision as to whether the applicant can repay the CSB.  G1 also stated that if the applicant was not eligible to complete 20 years of active service then DFAS would have paid the CSB in error.  G1 stated that receiving a bad OER and electing to receive the CSB did not in any way guarantee retention to 20 years for retirement.

15.  In his rebuttal, dated 10 May 2009, the applicant stated he feels the removal of the unfavorable and "career ending" OER should be given special consideration.  He states that after a review of his personnel file in January 2007, the Deputy Surgeon General informed him that he would never get promoted as long as the OER in question was in his file.  He states that at the time of his election he had an active duty service obligation (ADSO) that would expire 6 months prior to his achieving sanctuary at 18 years of active duty.  He stated that he elected the CSB in order to commit him to an ADSO that would carry him past sanctuary. 

16.  In accordance with the Department of the Army G-1 Retirement Services Homepage, a DIEMS (date initial entry military service) is the earliest date of enlistment, induction, or appointment in a regular or reserve component of a uniformed service as a commissioned officer, warrant officer, or enlisted member.  
17.  The Military Reform Act of 1986 created the REDUX retirement system and it applied to all members who joined on or after August 1, 1986.  Section 641 of the National Defense Authorization Act (NDAA) for FY2000 (Public Law 106-65), amended this system.  The NDAA made two major changes: 1) it allows those in this group to choose between the High-3 retirement system and the REDUX retirement system and 2) it added a $30,000 Career Status Bonus as part of the REDUX retirement system.  Soldiers under the REDUX formula who are eligible for retention to 20 years can elect to use REDUX and receive a $30,000.00 bonus in their 15th year.  If they accept the $30,000.00 bonus, they must agree to serve a total of 20 years of active duty and to accept retired pay with a 
40 percent multiplier, instead of the 50 percent multiplier they would have otherwise received.  This election is irrevocable.

18.  If a person paid a bonus under this section fails to complete a period of active duty beginning on the date on which the election of the person is received 
and ending on the date on which the person completes 20 years of active 
duty service, the person shall refund to the United States the amount that bears the same ratio to the amount of the bonus payment as the uncompleted part of that period of active duty service bears to the total period of such service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he never would have elected REDUX/CSB if he had not received a "career ending" OER.  He contends that since the Army removed the OER he should now be allowed to change his retirement decision.

2.  The applicant's DIEMS date is 15 January 1987.  At the time of his election to receive the CSB he was about to complete 15 years of active duty and he was eligible for retention to 20 years.  Therefore, he was eligible to elect and receive the CSB.  

3.  The REDUX/CSB was not, nor was it intended to be, a guarantee that an individual would be able to complete 20 years active service.  It was a means for individuals with a DIEMS date on or after 1 August 1986 to elect one of the available retirement systems.  The law specifically provided for the requirement of repayment of the CSB if an individual did not complete his or her 20 years of service.

4.  At the time the applicant elected REDUX/CSB he had been passed over once.  He had elected the CSB on 28 October 2005.  His second pass over for promotion (FY 2006), selected continuation, OER removal, and subsequent promotion to major happened after his election to receive the CSB.  The law does not provide for a change of election based on events occurring subsequent to the individual's election.

5.  At the time of the applicant's election to receive the CSB he acknowledged that he understood that once his election became effective it may not be revoked.  The law is clear in that once an election to receive CSB is made it is irrevocable.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090006206





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ABCMR Record of Proceedings (cont)                                         AR20090006206



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