IN THE CASE OF:	  

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090009728 


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, in effect, reconsideration of the Board's denial of his request to be allowed to return to full active duty status.  He also requests a waiver of mandatory removal at age 60.

2.  The applicant states, in effect, that he has been seeking relief and a full return to active duty status for 22 years.  He emphatically states that he has had the support of many senior officials, both military general officers and civilians.  He believes that he has a unique skill set that is required to support the wartime missions in Iraq and Afghanistan.  Those skill sets were honed after his release from active duty by studying US Presidential foreign policy of the Middle East in the Department of Islamic and Middle Eastern Studies, his study of the French and Arabic languages, and his study at the American University of Cairo.  He also states that with the support of senior civilian Department of the Army leadership, the 60-year age limitation should not be a factor in his return to full active duty status. 

3.  The applicant defers to his counsel to provide the supporting documents and evidence in support of his application. 







COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the following on behalf of the applicant:

   a.  placement before a Special Selection Board (SSB) for consideration to major based on the 1985 and 1986 criteria's;

    b.  that the SSB consider the applicant's reconstituted Officer Evaluation Report (OER) in its deliberations;

    c.  that if selected by the SSB, that the applicant’s records be corrected to show he served on active duty from the date of separation to the date of his eligibility for a 20-year retirement; 

    d.  that if selected by the SSB, that his records be corrected to show he was promoted to lieutenant colonel at a date consistent with his commissioning year group;

    e.  that if selected by the SSB for lieutenant colonel, that he be retired as a lieutenant colonel; and

    f.  that if selected by the SSB for promotion to major and lieutenant colonel, that he receive all back pay and allowances consistent with his rank which can be offset by his civilian income for each annual pay period. 

2.  Counsel states, in effect, that the Army Board for Corrections of Military Records (ABCMR) held a formal personal appearance hearing to consider the applicant's request for correction of his records on 22 September 1999.  The applicant's request at that time was to file his reconstituted OER in his Official Military Personnel File (OMPF).  He also requested consideration by an SSB for promotion to major for the years 1985 and 1986.  Per counsel an ABCMR Case Summary, Document Number AR1999025503, dated 29 September 1999 indicates that "At the request of the ABCMR, the applicant's promotion was reconsidered by a special selection board with . . . the preferred senior rater option company command OER entered into his record.  The applicant was again non-selected."

3.  Counsel states that there are no documents in the applicant's OMPF that confirms an SSB was convened to consider the applicant's record with the reconstituted command OER.  Counsel states the applicant received no notification that an SSB was held nor was there a memorandum advising the applicant that the SSB had not selected him for promotion.  In accordance with Title 10, U.S. Code, section 628, counsel states it facially appears that an SSB never occurred or convened.  Counsel concludes by stating that an injustice and an inequity occurred and now demands that an SSB be convened and that the applicant's reconstructed command OER be presented to the SSB for review and consideration.  Relief should be granted in the absence of proof that the purported SSB occurred. 

4.  Counsel provides the following documents in support of the applicant's application:

    a.  a copy of a DA Form 67-8 (Officer Evaluation Report) for the rating period 13 November 1982 through 26 June 1983, was signed and dated by the applicant on 25 July 1989;

    b.   a copy of the ABMCR's hearing testimony, the formal hearing case summary, and the findings of the formal hearing for AR1999025503, dated 29 September 1999;

    c.  Secretarial action denying relief, dated 31 December 1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that on 29 September 1999 ABCMR Docket Number AR1999025503 granted the applicant a formal personal appearance hearing under the provisions of the ABCMR Reconsideration Project.  The applicant's request for reconsideration for promotion to major and restoration to active duty was denied.  This same Board also denied his request to enter a new Command OER into his official record.   

2.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  That portion of the applicant's request for reconsideration of the Board's denial of his request to be restored to active duty was not received within one year of the ABCMR's original decision.  As a result, his request for reconsideration does not meet the criteria outlined above and will not be further discussed.  

3.  The applicant's date of birth is 27 December 1948.  On 27 December 2008, he turned age 60.  



4.  The applicant was commissioned through the Officer Candidate School in 1976 and served continuously until he was released from active duty for non-selection to major and transferred to the Army Reserve.  He was subsequently considered and selected for promotion to major in the Army Reserve and he accepted the promotion to major.

5.  The applicant's military records were not provided to the Board.  The applicant's Official Military Personnel File maintained on the integrated Personnel Electronic Management System (iPERMS) does not contain records showing the applicant's history while in the Army Reserve nor does it contain the results of the applicant's SSB.

6.  The applicant was involuntarily ordered to active duty in a mobilization status on 22 March 2009.  Orders M-03-902171, dated 5 March 2009, issued by the U.S. Army Human Resources Command-St. Louis states that the applicant is an honorary retiree returning to active duty in a retired status by approval of the Assistant Secretary of the Army, Manpower and Reserve Affairs (SA, M&RA).  The mobilization order was for a period not to exceed 179 days.  The orders terminated on 25 November 2009.

7.  Title 10, Section 14702(b) states that an officer may not be retained under this section after the last day of the month in which the officer becomes 60 years of age.

8.  Title 10, Section 14703, Authority to retain chaplains and officers in medical specialties until a specified age, states that the SA may, with the officer's consent, retain in an active status any Reserve officer assigned to the Medical Corps, but the officer cannot be retained beyond age 67.

9.  Army Regulation 140-10, paragraph 7-3, Maximum Age, states that Soldiers not sooner removed for another reason will be removed when they reach the maximum age of 60.  The removal date will be the last day of the month in which they reach age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his unique skill set should be taken into consideration for returning him to full active duty status. He also contends that the age 60 mandatory removal requirement should not apply to him. 

2.  By the authority of the ASA, M&RA the applicant was recalled to active duty in an involuntary status after he had attained the maximum age of 60.  He had attained 60 years of age on 27 December 2008 and mobilization orders show he entered active duty in a mobilization status as an Honoree Retiree on 22 March 2009.  

3.  There are no provisions within the current regulations or law that would allow the applicant to remain a member of the active Reserve.  Based upon the applicant's age, he is subject to administrative separation from the active Reserve upon his release from his current involuntary mobilization tour.  

4.  As for counsel's request for an SSB to consider the applicant for major using the years 1985 and 1986 criteria, the ABCMR case proceedings show that the applicant has already been considered by an SSB for those years.  Counsel contends that the lack of evidence to show the results of the SSB is prima facia evidence that the applicant was not, in fact, considered by an SSB.  This is not so.  It must be presumed that the ABCMR had evidence to support its statement that the applicant was considered by an SSB.  If the applicant believed that he was not considered by an SSB, the proper time to raise the issue was after he received the proceedings of the Board's formal hearing.  At this late date, the passage of time has resulted in the retirement of records which would be necessary to confirm or deny counsel's contention.  As such, there is insufficient evidence in which to grant this portion of the applicant's request.

5.  The applicant has an impressive resume.  However, his diversified education was accomplished after his two non-selections for promotion to major and his subsequent release from active duty.  As such, that education had no bearing on his non-selection for promotion and his subsequent failure to be selected by an SSB.

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.




      _______ _   _______   ___
               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)                                         AR20090009728



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ABCMR Record of Proceedings (cont)                                         AR20090009728


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