IN THE CASE OF:	  

		BOARD DATE:	  16 June 2009

		DOCKET NUMBER:  AR20090008692 


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, through a court remand, reconsideration of his request to show he was retained on active duty due to "sanctuary" and given a     20-year length of service retirement.

2.  The U. S. District Court for the District of Columbia found that the applicant demonstrated that the Army Board for Correction of Military Records (ABCMR) violated the Administrative Procedure Act by relying on non-existent evidence and, thus, denied him a 20-year service retirement.  The Court remanded that issue to the ABCMR to make a decision in accordance with the Court's opinion.  

3.  The Court noted that the applicant returned to active duty, with the District of Columbia Army National Guard (DCARNG), on 3 July 1994 as part of the Active Duty Special Work (ADSW) program.  Written documentation received by the applicant stated various erroneous calculations for his accrued active duty time.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service and a DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 January 1996, noted he had accrued 16 years, 4 months, and  24 days of active duty.  On 27 January 2005, the ABCMR informed him he had approximately 17 years of active Federal service.  On 29 July 2005, the NGB indicated he had accrued 16 1/2 years of active duty.  

4.  The Court noted that the applicant filed eight applications with the ABCMR.  With his eighth application, the ABCMR determined, in part, that the applicant should have signed a DA Form 1058-R (Application for Active Duty for Training, Active Duty for Special Work, and Annual Training for Soldiers of the Army National Guard and U. S. Army Reserve) prior to entering active duty in an ADSW status and, in the absence of that form, the ABCMR presumed administrative regularity and assumed that he did sign the form, therefore stating that the sanctuary provision did not apply to him and upholding his involuntary separation from active duty.  As a result, the ABCMR concluded the applicant was not eligible for a 20-year service retirement, having accrued only 18 years,   3 months, and 23 days of active duty.  

5.  The Court noted that the applicant attempted to chip away at the presumption of administrative regularity by reviewing the circumstances surrounding his ADSW program assignment orders.  The applicant cited to an NGB advisory opinion, issued on 25 July 2005, which noted that his ADSW orders were "hastily prepared," issued late and, thus, had to be verbally confirmed.  The NGB also remarked that the orders had cited the wrong authority.  The applicant argued to the Court that, based on the hasty preparation and typographical error associated with the orders, it was conceivable that he was never given, and therefore never signed, the DA Form 1058-R.

6.  The Court also noted that the applicant averred that the Army's repeated miscalculation of his service time could also have been the reason the Army did not provide him with the DA Form 1058-R, because the Army erroneously believed he was not even close to sanctuary and thus did not have to file a waiver.  The Army insisted that, when the applicant began active duty in the ADSW program, the Army was aware of his correct service time, and therefore, would have required him to sign a DA Form 1058-R.  The applicant maintained that the burden is not on him to prove a negative -- that the form does not exist -- rather, that the Army has the burden of preserving accurate records.  

7.  The Court noted that it is an axiom of administrative law that an agency's explanation of the basis for its decision must include a rational connection between the facts found and the choice made.  In the applicant's case, the evidence, including the miscalculation of his service time, the incorrect statutory authority, and the missing form indicate that the Army's administrative processes were not sworn to accuracy as applied to the applicant and, thus, is not entitled to a presumption of regularity.  Accordingly, the Court held that the ABCMR had acted arbitrarily and capriciously in relying on a document that no evidence suggests ever existed.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050012332 on 22 September 2005.

2.  The applicant was born on 26 September 1945.  He enlisted in the Regular Army on 28 June 1963.  He was honorably discharged from the Regular Army on 21 November 1979 with severance pay as the result of being physically unfit.  His DD Form 214 for the period ending 21 November 1979 shows he completed     16 years, 4 months, and 24 days of active duty.

3.  On 16 January 1986, the applicant enlisted in the ARNG with assignment to the DCARNG.  

4.  The applicant served 6 months and 2 days of active duty for training from       8 January through 9 July 1991.  His DD Form 214 for the period ending 9 July 1991 shows he had 16 years, 4 months, and 24 days of prior active service.

5.  An ARNG Retirement Points History Statement, dated 20 January 1996, shows he completed just over 18 years of active duty as of retirement year ending (RYE) 15 January 1992.  In addition to his 16 years, 4 months, and        24 days of active service in the Regular Army and the active duty time ending    in July 1991 (i.e., RYE 15 January 1992), this Statement shows he had 94 days of active duty in RYE 15 January 1987; 155 days of active duty in RYE              15 January 1988;15 days of active duty in RYE 15 January 1989; a total of         85 days of active duty in RYE 15 January 1990; a total of 71 days of active      duty in RYE 15 January 1991; and an additional 18 days of active duty in RYE   15 January 1992.

6.  The applicant was promoted to Sergeant Major, E-9 effective 12 April 1992.

7.  Headquarters, District of Columbia National Guard Orders 100-21, dated      23 July 1994, ordered the applicant to ADSW for the period 22 July 1994 to      29 September 1994 in a Title 10 status for the purpose of providing support to the Military District of Washington (MDW) and to report to the ARNG Readiness Center in Arlington, VA.  Title 32, U. S. Code, section 502(f) was cited as the authority for that action.  He was released from active duty, in accordance with these orders, on 29 September 1994.

8.  An NGB Form 22 shows the applicant was separated from the DCARNG effective 15 January 1996 and transferred to the Retired Reserve.  This form shows he enlisted on 16 January 1986, had completed 10 years of net service (not active duty or full-time duty) this period, and had completed 16 years, 4 months, and 24 days of prior active Federal service.

9.  On 25 January 1999, the applicant submitted his first application to the ABCMR, requesting that his disability separation be changed to a disability retirement.

10.  An ARNG Retirement Points History Statement, dated 28 May 2003, shows the applicant completed just over 18 years of active duty as of RYE 15 January 1992.

11.  An ARNG Retirement Points History Statement, dated 31 May 2005,    shows the applicant did not complete 18 years of active duty until on or about   24 September 1994.  The difference between this Retirement Points History Statement and the Statements dated January 1996 and May 2003 was in RYE 15 January 1988.  The first two statements showed he completed 155 active duty points during RYE 15 January 1988; the latter statement showed he completed     5 active duty points during RYE 15 January 1988.

12.  An ARNG Current Annual [Retirement Points] Statement, dated 1 June 2005, shows the applicant had completed 18 years, 3 months, and 26 days of active duty as of 29 September 1994.  RYE 15 January 1988 was adjusted to show he completed 123 active duty points.

13.  On or about 15 August 2005, the applicant submitted his eighth application to the ABCMR, wherein he requested for the first time that his records be corrected to show he was retained on active duty due to "sanctuary."

14.  The applicant became eligible for a nonregular retirement when he turned age 60 on 26 September 2005.

15.  In the 2005 consideration of the applicant's case, an advisory opinion was prepared by the NGB.  The advisory opinion noted, in part:

      (1) The ARNG Current Annual Statement dated 1 June 2005 shows the applicant was credited with 18 years, 1 month, and 23 days of active duty when he entered his ADSW tour on 22 July 1994 (i.e., with RYE 15 January 1994).  Therefore, when he entered the ADSW tour he either was, or should have been considered to be, covered by the sanctuary provisions of Title 10, U. S. Code, section 12686(a) and should not have been released from active duty on           29 September 1994 as stated in the self-terminating orders unless he waived sanctuary.

     (2) Headquarters, District of Columbia National Guard Orders 100-21 dated 23 July 1994 ordering the applicant to ADSW at the NGB was improper in its purpose and the authority cited, and the ending date was questionable.  The applicant was ordered to report to the ARNG Readiness Center on 22 July 2004. The purpose clearly established that tour should have been ordered under Title 10, U. S Code although it erroneously stated it was "in support of MDW."  The ARNG Readiness Center is a Field Operating Activity of the NGB, and thus, Headquarters, Department of the Army.  The authority should have read "Title  10 USC 672(d)."  The advisory opinion noted that this citation was later             re-codified in Title 10, U. S. Code as section 12301(d).

16.  Title 10, U. S. Code, section 1163(d), in effect at the time, stated that, under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve Component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless his release is approved by the Secretary. 

17.  Effective 5 October 1994, Title 10, U. S. Code, section 1163 was moved to section 12686.  Section 12686(a) states a member of a Reserve Component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay under a purely military retirement system may not be involuntarily released from that duty before he becomes eligible for that pay unless the release is approved by the Secretary.

18.  Title 10, U. S. Code, section 12686(b) states that, with respect to a member of a Reserve Component who is to be ordered to active duty (other than for training) under section 12301 of this title pursuant to an order to active duty that specifies a period of less than 180 days and who (but for this subsection) would be covered by subsection (a), the Secretary concerned may require, as a condition of such order to active duty, that the member waive the applicability of subsection (a) to the member for the period of active duty covered by that order.  In carrying out this subsection, the Secretary concerned may require that a waiver under the preceding sentence be executed before the period of active duty begins.

19.  Army Regulation 135-200 (Active Duty for Training, Annual Training, and Active Duty for Special Work of Individual Soldiers), the version in effect at the time, prescribed policies and procedures for ordering ARNG and U. S. Army Reserve (USAR) Soldiers to annual training (AT), active duty for training (ADT) , initial active duty for training (IADT), and ADSW.  Paragraph 1-11 stated ADT, IADT, and ADSW orders would clearly cite section 672(d), Title 10, U. S. Code as the authority for ordering a Soldier to active duty.  (The current version of the regulation states section 12301(d) will be cited.)  Paragraph 1-11a(10)(a) stated the "sanctuary" provision would not apply to Soldiers who came within 2 years of retirement eligibility during a period of AT, ADT, or IADT.

20.  Army Regulation 135-200, paragraph 6-6b of the regulation in effect at the time (and of the regulation currently in effect) stated that applicant's for ADSW tours must submit DA Forms 1058-R.  Paragraph 6-6c of the regulation in effect at the time (and of the regulation currently in effect), stated a Soldier applying for ADSW who was or would be within 2 years of qualifying for an active Federal service retirement would enter the following in the remarks section of the DA Form 1058-R:

	"I understand that, although at the completion of my tour I may be within        2 years of qualifying for an active duty retirement under 10 USC 1293, 3911, or 3914, it is current Army policy that I will be released from active duty at the completion of my tour unless my continued retention on active duty is considered in the best interests of the Army by the Assistant Secretary of the Army (Manpower and Reserve Affairs).  I hereby consent to being ordered to active duty for the period indicated and consent to my release from active duty at the completion of this tour."

21.  The current version of the DA Form 1058-R is dated July 1993.  The required statement is pre-printed in item 24 (Remarks).

22.  Army Regulation 640-10 (Individual Military Personnel Records), in effect at the time, assigned responsibilities for maintaining and controlling the Official Military Personnel File (OMPF), the Military Personnel Records Jacket (MPRJ), and the Career Management Individual File (CMIF).  The regulation provided that the DA Form 1058-R was to be filed only in the USAR CMIF.  It was to be maintained for a period of two years from training date upon publication of orders, or, if training was disapproved, maintained for one year.  The form is not required to be maintained in the OMPF or the MPRJ. 

23.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) is the current regulation that governs the maintenance of military records.  It also requires that the DA Form 1058-R be filed only in the USAR CMIF, for the same retention period.

24.  National Guard Regulation 680-2 (Automated Retirement Points Accounting System), effective 1 March 1989, sets, in part, the responsibilities and procedures for maintaining ARNG retirement records.  Paragraph 2-7c states that, at the end of the Soldier's retirement year, the ARNG Current Annual Statement will be produced in original and two copies.  The first carbon copy of each form will be forwarded through the chain of command to the Soldier.  The original will be retained by the Soldier for his use.  The first carbon copy will be reviewed and initialed by the Soldier, then filed in the MPRJ.  Only the most current form will be filed in the MPRJ.  The second carbon copy will be for State use.  Soldiers who disagree with these statements will provide documents to initiate corrections.  

25.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The Court noted it is an axiom of administrative law that an agency's explanation of the basis for its decision must include a rational connection between the facts found and the choice made.  In the applicant's case, the Court found that the evidence, including the miscalculation of his service time, the incorrect statutory authority, and the missing form indicate that the Army's administrative processes were not sworn to accuracy as applied to the applicant and, thus, is not entitled to a presumption of regularity.  Accordingly, the Court held that the ABCMR had acted arbitrarily and capriciously in relying on a document that no evidence suggest ever existed.

2.  It is true that the applicant's original ADSW orders incorrectly cited Title 32,  U. S. Code, section 502(f) as the authority.  However, as the advisory opinion noted, the purpose for the ADSW clearly established that the tour should have been ordered under Title 10, U. S. Code, although it erroneously stated it was "in support of MDW."  The governing regulation also stated that ADSW orders would clearly cite section 672(d), Title 10, U. S. Code, as the authority for ordering a Soldier to active duty.  If NGB was fully aware that the purpose for the applicant's ADSW was clearly under Title 10, U. S. Code, then it is presumed that the DCARNG was also fully aware the purpose for his ADSW was clearly under Title 10, U. S. Code, and that the administrative error on his ADSW orders indicating it was under Title 32, U. S. Code, was truly an administrative error and not an error of knowledge.

3.  Again, the Court concluded, in part, that the miscalculation of the applicant's service time indicated the Army's administrative processes were not sworn to accuracy as applied to the applicant and, thus, is not entitled to a presumption of regularity.  As evidence that written documentation received by the applicant stated various erroneous calculations for his accrued active duty time, the Court cited a DD Form 214, dated 15 January 1996, that noted the applicant had accrued 16 years, 4 months, and 24 days of active duty.  No DD Form 214 for that ending period could be located in the applicant's records.  The Court also cited the applicant's NGB Form 22 for the period ending 15 January 1996.  However, that NGB Form 22 was for the period beginning 16 January 1986, when the applicant enlisted in the DCARNG.  That form correctly shows that the applicant had prior active Federal service of 16 years, 4 months, and 24 days.  That is, 16 years, 4 months, and 24 days of active Federal service prior to his DCARNG enlistment of 16 January 1986.

4.  It is also acknowledged that the ARNG Current Annual Statement dated       31 May 2005 shows the applicant was not credited with 18 years of service until      24 September 1994, after he entered his ADSW tour in July 1994.  

5.  The statement on the DA Form 1058-R indicates that the Soldier understands that, although at the completion of his tour he could be within 2 years of qualifying for an active duty retirement, he would be released from active duty    at the completion of his tour, and the Soldier consents to being ordered to active duty for the period indicated and consents to his release from active duty at      the completion of this tour.  The applicant completed his ADSW tour on             29 September 1994.

6.  However, it appears that the 31 May 2005 ARNG Current Annual Statement was the only statement of retirement points that did not reflect that the applicant had over 18 years of active duty when he entered his ADSW tour on 22 July 1994.  

7.  Very few of the applicant's ARNG Retirement Points History Statements/ARNG Current Annual Statements are filed in his records.  However, his ARNG Retirement Points History Statement, dated 20 January 1996, shows he completed just over 18 years of active duty as of retirement year ending (RYE) 15 January 1992.  His ARNG Retirement Points History Statement, dated 28 May 2003, shows he completed just over 18 years of active duty as of RYE   15 January 1992.

8.  Only the most current Statement is required to be filed in a Soldier's records.

9.  The first available ARNG Current Annual Statement to show the applicant did not complete 18 years of active duty when he entered his ADSW tour was dated 31 May 2005.  This Statement was then corrected on 1 June 2005, the very next day, to show he did have 18 years of active duty when he entered his ADSW tour.  The applicant's first application to the ABCMR to question his rights under "sanctuary" was dated around August 2005.  

10.  Although no other statements of retirement points are in the applicant's records, these statements are provided to Soldiers on an annual basis.  The applicant was a senior noncommissioned officer.  He had been promoted to the highest enlisted rank, E-9, in 1992.  It is not reasonable to presume that he would not have been looking forward to receiving his annual statement of retirement points every year and, if the point calculations were not correct, to have them corrected in a timely manner.  These point calculations, and number of points accrued, are of great importance to ARNG and U. S. Army Reserve members as they are used to determine eligibility for a Reserve retirement and to calculate the value of a Reserve retirement.

11.  The applicant's statement of retirement points, dated January 1996 (less than 18 months after he entered that ADSW tour), showed he had 18 years of active duty when he entered his July 1994 ADSW tour.  His statement of retirement points, dated May 2003, also shows he had 18 years of active duty when he entered his July 1994 ADSW tour.  It was not until May 2005, more than 11 years after he entered that ADSW tour, that a question concerning his active duty credit was raised by the applicant.  

12.  As the advisory opinion pointed out, the DCARNG should have known the applicant had over 18 years of active Federal service at that time.  Based upon available statements of retirement points more contemporaneous with the applicant's ADSW tour than the 31 May 2005 statement, the advisory opinion appears to have made a reasonable presumption.  The applicant, who should have been receiving annual statements of retirement points all along, has not provided earlier statements to show his retirement points (and active duty service) had been seriously miscalculated prior to May 2005.  

13.  Again, the Court concluded, in part, that the missing DA Form 1058-R indicates that the Army's administrative processes were not sworn to accuracy as applied to the applicant and, thus, is not entitled to a presumption of regularity.

14.  The applicant's DA Form 1058-R for the ADSW period in question is not available.  However, the current version of the form is dated July 1993 and so also was the form the applicant would have completed.  The required statement 
(i.e., that he understood that although at the completion of his tour he could be within 2 years of qualifying for an active duty retirement he would be released from active duty at the completion of his tour, and he consented to being ordered to active duty for the period indicated and consented to his release from active duty at the completion of this tour) is pre-printed in item 24; therefore, the statement could not have been left off the form inadvertently.  

15.  The applicant's DA Form 1058-R was never required to be maintained forever in any official military files.  The governing regulation at the time (and the current governing regulation) required only that the DA Form 1058-R be filed in the Soldier's USAR CMIF, and, in the applicant's case, only for a period of two years.  The applicant, a senior noncommissioned officer, did not raise the issue of his being improperly separated because he was protected by "sanctuary" until 11 years later, long after the required period to retain that form was over.  Under these circumstances, the applicant's claim, which rests on the existence of a form the Army was not required to retain, is barred by the doctrine of laches.

16.  ADSW is not performed based upon an involuntary order to active duty.  Soldiers apply for ADSW tours.  Soldiers may be requested on a by-name basis; however, they still have to apply for the tour.  To apply for an ADSW tour, a Soldier completes a DA Form 1058-R.  The applicant's orders may have been "prepared hastily."  However, they could not have been prepared at all unless he completed a DA Form 1058-R and applied for the ADSW tour.  The preponderance of the available evidence indicates that the applicant had completed over 18 years of active Federal service as of the start date of his ADSW tour and that the DCARNG was aware that he had completed over         18 years of active Federal service as of the start date of his ADSW tour.

17.  Administrative regularity is presumed, the applicant was not involuntarily released from active duty, and so the "sanctuary" provisions of Title 10, U. S. Code, section 12686(a) did not apply to him.  This conclusion is supported by the regulations applicable to ADSW; the preponderance of the retirement point credit summaries available for review; and the presumption that the applicant, as a senior enlisted Soldier with many years of experience and familiarity with Army rules and procedures, would have raised the issue of "sanctuary" much earlier if it, in fact, was a legitimate issue in dispute.

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 to amend the decision of the ABCMR set forth in Docket Number AR20050012332, dated 22 September 2005.




      _______ _   _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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ABCMR Record of Proceedings (cont)                                         AR20090008692



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