IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090006466 


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 she be issued a discharge order from the Individual Ready Reserve (IRR) with an effective date of 29 May 2006 at the completion of her military service obligation (MSO).  

2.  The applicant states that she should have been transferred from the North Carolina Army National Guard into the Army IRR.  Through an electronic error in the system, her records never made the complete transaction and she was never placed in the IRR.  She states she did not discover the error until 30 September 2008 while she was in the process of getting an appointment in the California Air National Guard.  The Air Guard tried to transfer her from the IRR, but they were informed that the applicant was not a current member of the IRR.  After coordinating between the North Carolina Army National Guard and the Army Human Resources Command, she was finally electronically entered into the IRR system around 29 January 2009.  However, this created a new problem.  Since she was not in the system at the end of her service obligation date, she did not receive a letter requesting her intentions to remain or leave the service.  She states that she would have elected to resign at the end of her service obligation on 29 May 2006 if the appropriate process had been followed.  She finally received her Election of Options letter on 6 February 2009 and her career manager advised her to elect the option to remain in the IRR.  Her direct transfer to the Air Guard with no break in service causes her to have five “non-good” years on her record.  After being administratively placed in the IRR in January 2009, she asked if she could be issued a back-dated discharge order; however, she was told that the IRR does not have the authority to do so and she was advised to apply to the Army Review Board Agency.  
3.  The applicant provides the following documents in support of her application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for 
the period ending 18 May 2001;
* NGB Form 22 (National Guard Bureau Report of Separation and Record 
of Service);
* State of North Carolina, Orders 009-815, dated 9 January 2004, 
discharging her from the Army National Guard;
* Departments of the Army and the Air Force National Guard Bureau 
Special Orders Number 34 AR, dated 12 February 2004;
* Army National Guard Retirement Points History Statement, dated 
25 October 2004;
* Numerous emails; 
* Information Paper, dated 27 October 2008; 
* AHRC Form 4145 (Election of Options – Military Service Obligation), 
dated 11 February 2009;
* DD Form 368 (Request for Conditional Release); and 
* Memorandum, subject: Approval for Temporary Appointment of Prior 
Service Officer – [applicant’s name], XXX-XX-XXXX, dated 19 March 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the California Air National Guard in the rank of captain.

2.  The applicant was appointed as a Reserve commissioned officer on 30 May 1998 in the rank of second lieutenant with a concurrent call to active duty.  

3.  She was released from active duty on 18 May 2001 under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges), paragraph 2-5 by reason of miscellaneous/general reasons.  At the time of her separation, she had completed 2 years, 11 months, and 19 days of active military service.  On the following day, she was transferred to Headquarters and Headquarters Company, 30th Infantry Brigade.

4.  Item 6 (Reserve Obligation Termination Date) on her DD Form 214 for the period ending 18 May 2001 shows her Reserve obligation termination date as 29 May 2006.  

5.  On 14 June 2001, the applicant was appointed as a first lieutenant in the North Carolina Army National Guard.  She was granted Federal Recognition effective 14 June 2001 for appointment in the North Carolina Army National Guard by Departments of the Army and the Air Force National Guard Bureau Special Orders Number 214 AR, dated 6 August 2001.

6.  The applicant was promoted to captain in the Reserve on 12 July 2002.  She was granted Federal Recognition for promotion to captain by Departments of the Army and the Air Force National Guard Bureau Special Orders Number 191 AR, dated 12 July 2002.

7.  On 15 December 2003, the applicant tendered her resignation as an officer of the North Carolina Army National Guard under the provisions of National Guard Regulation 635-100, paragraph 5a(3)(a) and requested that she be transferred to the Army Reserve with assignment to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  She indicated that she had a remaining inactive reserve obligation.  

8.  State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Orders 009-815, dated 9 January 2004, separated the applicant from the Army National Guard effective 31 January 2004 and transferred her to the USAR Control Group (Reinforcement) on the following day.  These orders state in part, “Upon termination of Federal Recognition, you become a member of USAR under provisions of title 10 USC E.”

9.  Her NGB Form 22 shows she was honorably discharged from the North Carolina Army National Guard on 31 January 2004 under the provisions of National Guard Regulation 635-100, paragraph 5a(3)(a) by reason of resignation and transferred to the USAR Control Group (Reinforcement).  She had completed 2 years, 7 months, and 17 days net service this period.  

10.  Departments of the Army and the Air Force National Guard Bureau Special Orders Number 34 AR, dated 12 February 2004, show the applicant’s Federal Recognition was withdrawn effective 31 January 2004 and that she was transferred to the USAR.  

11.  The applicant’s Army National Guard Retirement Points History Statement, dated 25 October 2004, shows she received 43 retirement points for retired pay for the retirement year beginning 30 May 2003 to the retirement year ending 31 January 2004.

12.  On 16 July 2008, the applicant tendered her resignation from the Army IRR contingent upon actual appointment or enlistment in the California Air National Guard.  


13.  The applicant provided a copy of an Information Paper, dated 27 October 2008, from the Chief, Veterans Support Branch, Personnel Support Division, The Adjutant General Directorate – West.  This document showed that their computer systems indicated the applicant was discharged from the Army National Guard and Army Reserve on 31 January 2004, but the North Carolina Army National Guard did not update the computer systems to indicate she was transferred to the Army Reserve Control Group.  The applicant was advised to contact the North Carolina Army National Guard.  

14.  On 15 January 2009, the National Guard Bureau published orders discharging the applicant from the Army National Guard of the United States with an effective date of 31 January 2004.  The additional instructions stated in part “All reserve of the Army and Army of the United States appointments are terminated.”  

15.  Departments of the Army and the Air Force National Guard Bureau Special Orders Number 13 AR, dated 15 January 2009, show the applicant’s Federal Recognition was withdrawn and she was honorably discharged from the Army National Guard effective 31 January 2004.  

16.  On 6 February 2009, the applicant completed an Election of Options – Military Service Obligation and she elected the option “I elect to remain a member of the IRR and understand that while assigned I am subject to mobilization.  I further understand that I have the right to submit an unqualified resignation at any time in the future and that such request will be considered based on the needs of the Army at that time.”

17.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  The National Guard Bureau recommended that the applicant’s request be forwarded to the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) for action.  

18.  A staff advisory opinion was obtained from the HRC-STL in August 2009.  The advisory opinion stated that the HRC-STL did not have the authority to publish discharge orders and back date them over 3 years.  It was recommended that the applicant submit her resignation in writing and the discharge would be effective the date that the orders were published.  The advisory opinion pointed out that this was the method of publishing orders required by Army Regulation 135-175 and Army Regulation 600-8-24.  

19.  A copy of the advisory opinion was forwarded to the applicant to allow her the opportunity to submit comments.  However, she did not respond within the allotted timeframe.  
20.  National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition) prescribes the policies, criteria and procedures governing the separation of commissioned officers from the Army National Guard.  Paragraph 5a(3)(a) states that an officer may tender a resignation through channels to the State adjutant general.  If accepted, the State adjutant general will publish orders separating the officer from his/her Army National Guard appointment and furnish copies to the Chief, National Guard Bureau.  The resignation may also be concurrent from the Army National Guard and Reserve of the Army of the Army for officers without a remaining service obligation.  

21.  Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers) states that a member of the USAR who has at least 3 years of service as a commissioned officer may not be discharged without his/her consent, except under an approved recommendation of a board of officers convened by an authority designated by the Secretary of the Army, by the approved sentence of a court-martial, or as otherwise specifically provided by law.

22.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it states that the Reserve obligation termination date refers to the completion date of the statutory service obligation incurred by all personnel on initial enlistment or appointment into the Armed Forces.  This regulation states that the MSO starts on the date of initial enlistment or appointment in the Regular Army, Army National Guard, and the U.S. Army Reserve to include Delayed Entry Program.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully reviewed.  After careful review of all of the evidence of record, it has been determined that there is sufficient evidence on which to grant the relief requested.  

2.  The applicant was appointed as a Reserve commissioned officer on 30 May 1998.  Her statutory Reserve service obligation would have ended on 29 May 2006 (8 years after her appointment in the Army Reserve).  

3.  The applicant was appointed in the North Carolina Army National Guard on 14 June 2001.

4.  In December 2003, the applicant submitted her resignation from the Army National Guard and also requested transfer to the USAR Control Group (Reinforcement) at that time.

5.  Orders were published in January 2004 which separated the applicant from the Army National Guard effective 31 January 2004 and transferred her to the USAR Control Group (Reinforcement) to complete her Reserve service obligation.  However, it appears that the appropriate administrative actions were not taken and the applicant was not transferred to the USAR Control Group (Reinforcement) on the date following her discharge from the Army National Guard.  

6.  Though no fault of the applicant, she was not assigned to the IRR to complete her remaining Reserve service obligation.  As a result, she was not issued an Election of Options – Military Service Obligation at her MSO (29 May 2006). 

7.  It appears that an injustice has occurred in this case.  Therefore, it would be equitable to correct the applicant’s records to show she was transferred to the IRR effective 1 February 2004 (date following her separation from the Army National Guard).

8.  In addition, it would be equitable to issue orders discharging the applicant from the IRR effective 29 May 2006 at completion of her MSO at her request.

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  showing she was transferred to the IRR effective 1 February 2004; and


b. issuing discharge orders showing she was discharged from the IRR 
effective 29 May 2006 at completion of her MSO.  




      _______ _   _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)                                         AR20090006466





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006466



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1