BOARD DATE: 22 December 2009
DOCKET NUMBER: AR20090007779
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 he had a civilian break in service from 16 December 1994 through 31 December 2001 instead of being in the U.S. Army Reserve (USAR) Control Group during this period.
2. The applicant states that he resigned his commissioned from the California Army National Guard on or about 16 December 1994 in order to focus on his family and civilian career. He alleges that he was erroneously placed in the USAR Control Group (Reinforcement) due to circumstances beyond his control. It was his intent to have a civilian break in service for the period 16 December 1994 to 31 December 2001. He took his Oath of Office and entered the California Army National Guard on 1 January 2002.
3. The applicant provides a copy of his Army National Guard Retirement Points History Statement in support of his 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant is currently serving in the Army National Guard in the rank of major.
3. After having prior enlisted service, the applicant was appointed as a Reserve commissioned officer on 15 November 1990 in the rank of second lieutenant.
4. The applicant was appointed as a commissioned officer in the Army National Guard on 7 December 1991 and was granted Federal Recognition on the same date.
5. On an unknown date, the applicant tendered a resignation from the Army National Guard. His resignation packet is not available.
6. On 23 February 1995, the State of California, Office of the Adjutant General, Sacramento, CA published Orders 43-19, separating the applicant from the Army National Guard, effective 15 December 1994, under the provisions of National Guard Regulation (NGR) 635-100, paragraph 5a(3)(a). These orders show he was transferred to the USAR Control Group (Reinforcement) on the following day.
7. Item 23 (Authority and Reason) on his NGB Form 22 (Report of Separation and Record of Service) shows the entry Resignation.
8. The additional instructions on Orders 43-19, dated 23 February 1995, show the applicant did not have a Reserve obligation.
9. Block 11 (Terminal Date of Reserve/Military Service Obligation) of his NGB Form 22 (Report of Separation and Record of Service) shows the entry "Not Applicable."
10. Departments of the Army and the Air Force National Guard Bureau Special Orders Number 24 AR, dated 16 March 1995, withdrew the applicant's Federal Recognition effective 15 December 1994.
11. The applicant's Army National Guard Retirement Points History Statement shows he was in the USAR Control Group (Reinforcement) during the period 16 December 1994 through 31 December 2001, but he accumulated only the standard 15 annual membership points.
12. The applicant was appointed as a commissioned officer in the Army National Guard effective 1 January 2002 in the rank of first lieutenant and granted Federal Recognition effective 1 January 2002.
13. NGR 635-100, paragraph 5a(3), in effect at the time, stated that an officer could tender a resignation through channels to the State Adjutant General. The resignation could also be concurrent from the Army National Guard and Reserve of the Army for officers without a remaining service obligation.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he was erroneously placed in the USAR Control Group (Reinforcement) due to circumstances beyond his control and it was his intent to have a civilian break in service for the period 16 December 1994 to 31 December 2001.
2. The evidence of record shows the applicant was appointed as a commissioned officer in the Army National Guard on 7 December 1991 and granted Federal Recognition on that date.
3. The applicant states he submitted his resignation from the California Army National Guard on or about 16 December 1994. His resignation packet is not available; however, item 8b of his NGB Form 22 shows he was separated from the California Army National Guard effective 15 December 1994 by reason of resignation. It appears reasonable to believe that this entry led the applicant to believe that he had resigned both his Army National Guard and Reserve of the Army status.
4. As a matter of equity, it would be appropriate to amend the applicant's records to show he had a civilian break in service during the period 16 December 1994 to 31 December 2001 by showing he was discharged from the Californian Army National Guard and as a Reserve of the Army effective 15 December 1994.
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 State Army National Guard and Department of the Army records of the individual concerned be corrected by:
a. voiding his transfer to the USAR Control Group (Reinforcement) on
16 December 1994; and
b. showing he was discharged from the Army National Guard and as a
Reserve of the Army on 15 December 1994.
_______ _ ___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.
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