IN THE CASE OF:	  

		BOARD DATE:	    11 May 2010

		DOCKET NUMBER:  AR20090010876 


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 reconsideration of his previously denied requests for recalculation of his mandatory removal date (MRD) in order to provide him 3 to 4 additional years for promotion consideration eligibility and immediate consideration by a special selection board (SSB) under the 2003 selection criteria.

2.  The applicant states the periods during which he was assigned to the Inactive National Guard and the U.S. Marine Corps Reserve (USMCR) should not have been included as part of his cumulative 28 years of active commissioned service when computing his MRD.  The applicant contends that correction of his erroneous MRD will make him eligible for an additional 3 to 4 years of promotion consideration and immediate consideration by an SSB.

3.  The applicant also states he fulfilled the requisite military education level 4 training by completing the USMC Command and Staff Course on 30 April 2003, which makes him fully qualified for promotion consideration to the rank/pay grade of colonel (COL)/O-6.

4.  In support of this request, the applicant provides:

* U.S. Army Human Resources Command (AHRC) Form 249-2-E (Chronological Statement of Retirement Points), dated 18 December 2008
* USMC Command and Staff College certificate, dated 30 April 2003
* U.S. Army Reserve Personnel Command (ARPC) Form 2363 (Retirement Points Account System (RPAS))
* Officer Record Brief, dated 23 May 2009
* self-authored biography
* memorandum classifying him as an Army Medical Department (AMEDD) officer
* three memoranda of performance
* Naval War College graduate-level course completion letter
* extract from Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)
* official photograph, dated 12 June 2009

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 AR2003093364 on 20 April 2004.

2.  Although the applicant did not request reconsideration of his previously-denied application within the 12-month time frame provided in the statute of limitations, the Board will reconsider his request based on the fact that a new advisory opinion was requested and obtained from Chief, Special Actions Branch, DA Promotions, U.S. Army Human Resources Command.

3.  The applicant's record shows his date of birth is 18 January 1948.  He was initially appointed in the New York ARNG and granted Federal recognition effective 16 August 1974 in the rank of second lieutenant/O-1 in the Medical Service Corps at the age of 26.  He served in a variety positions at various duty stations and was promoted through the commissioned officer ranks culminating at the rank/pay grade of lieutenant colonel (LTC)/O-5.  He was promoted to LTC with an effective date and date of rank of 14 November 1994.

4.  At the time the applicant's initial request was considered by the Board, the Integrated Total Army Personnel Database (ITAPDB) maintained by the U.S. Army Human Resources Command showed his MRD as 15 August 2002 based upon 28 years of commissioned service in an active status commencing on his initial date of appointment of 16 August 1974.

5.  New York ARNG Orders 168-10, dated 29 August 1983, show the applicant was transferred to the Inactive National Guard for a period of 1 year effective 1 June 1983.  The reason given for this transfer was "business interference" and his Inactive National Guard status was scheduled to expire 1 year later on 31 May 1984.

6.  National Guard Bureau (NGB) Special Orders 199 AR, dated 13 October 1983, show the applicant's Federal recognition status was changed to Inactive National Guard effective 1 June 1983.

7.  Following a 12-month break in active service status, New York ARNG Orders 115-145, dated 14 June 1984, and an NGB Form 22 (Report of Separation and Record of Service), dated 31 May 1984, show the applicant was relieved from the Inactive National Guard and transferred to the U.S. Army Reserve Control Group (Standby) effective 31 May 1984.

8.  U.S. Total Army Personnel Command, memorandum, dated 22 November 1999, shows the Chief, Officer of Promotions, Reserve Components, informed the applicant a DA Reserve Components Selection Board was convened to consider officers in his grade for promotion to the rank/grade COL and he had been considered for promotion, but was not among those selected for promotion by the board.  He also informed the applicant that if he remained eligible, he would be considered for promotion by the next mandatory selection board for his grade and competitive category.

9.  U.S. Army Reserve Personnel Command, memorandum, dated 13 June 2001, shows the Director, Personnel Actions and Services, notified the applicant he had completed the required years of service to be eligible for retired pay upon application at age 60 (20-year letter).  He also reminded the applicant that since he had completed 20 years of qualifying service, he must earn a minimum of 50 points each retirement year to retain his active status.

10.  U.S. Army Reserve Personnel Command, memorandum, dated 13 August 2002, shows the Director, Personnel Actions and Services, notified the applicant he was identified as not earning 50 points during his most recent retirement year and that the regulation provided for a waiver on a one-time basis.  He also informed the applicant that if he did not remain in an active status by earning 50 points, he had the choice of requesting transfer to the Retired Reserve or being discharged.

11.  On 11 September 2002, the applicant responded and stated his desire to continue in an active status in the USAR and requested an exception in order to provide him time to earn the required points.  On 30 September 2002, he was informed his request for a one-time waiver for nonparticipation had been granted and that no future waivers were authorized.

12.  U.S. Total Army Personnel Command, memorandum, dated 17 October 2002, shows the Chief, Office of Promotions, Reserve Components, informed the applicant a DA Reserve Components Selection Board convened on 28 May 2002 to consider officers in his grade for promotion to the rank/grade COL and he had been considered for promotion, but was not among those selected for promotion by the board.  He also informed the applicant that if he remained eligible, he would be considered for promotion by the next mandatory selection board for his grade and competitive category.

13.  U.S. Army Reserve Personnel Command, Orders C-11-228749, dated 8 November 2002, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the U.S. Army Medical Research and Materiel Command effective 6 November 2002 for a voluntary tour of active duty for a period of 6 months, unless sooner relieved.

14.  U.S. Army Reserve Personnel Command, memorandum, dated 15 April 2003, shows the Director, Personnel Actions and Services, informed the applicant that Title 10, U.S. Code, prescribes the maximum service a member of the USAR may serve in an active status.  He also informed the applicant his records indicated he had completed 28 years of active status commissioned service on 1 September 2002 and accordingly, his removal from an active status was mandatory by law.  The applicant was also informed that he would be transferred to the Retired Reserve.

15.  U.S. Total Army Personnel Command, Orders C-04-310783, dated 15 April 2003, show the applicant was released from the USAR Control Group (Individual Mobilization Augmentee) due to his completion of maximum authorized years of service and transferred to the Retired Reserve effective 15 April 2003.

16.  The applicant's retirement points summary shows he had completed 21 years of creditable service for retirement purposes at the time.  The applicant's time spent in the Inactive National Guard is not included in this total.

17.  A review of the ITAPDB and the Total Officer Personnel Management System (TOPMIS) show the applicant's MRD was changed from 15 August 2002 to 15 August 2003 at some point in time, effectively extending it an additional year.

18.  The applicant provides:

	a.  an AHRC Form 249-2-E, dated 18 December 2008, showing he had a break in his active commissioned service during the period 10 May 1983 through 9 May 1985 [which includes the period 1 June 1983 through 31 May 1984, during which the applicant was in the Inactive National Guard].  This form also shows he had active commissioned service in the USMCR for an unspecified period of time during the 10 May 2002 through 9 May 2003 retirement year;
	b.  a certificate showing he successfully completed the USMC Command and Staff College on 30 April 2003;

	c.  an ARPC Form 2363 depicting the procedures for reviewing and requesting corrections to the RPAS-generated ARPC Form 249-2-E:

		(1)  Item 6 of this form provides only members in an active reserve status or in active Federal status are authorized to earn and be credited with retirement points.  After an individual reaches MRD, the law prohibits the crediting of any retirement points even if the member remained in an active status beyond MRD through administrative oversight.

		(2)  Item 7 of this form provides if there is a break in active status, to include transfer to the Inactive National Guard, a new retirement year will be established upon reentry to an active status.

	d.  an Officer Record Brief, dated 23 May 2009, showing he completed the USMC Command and Staff Course in 2003;

	e.  a self-authored biography highlighting his key assignments and achievements;

	f.  a U.S. Army Reserve Personnel Center, memorandum, dated 8 March 1989, showing he was classified as an AMEDD officer;

	g.  three memoranda rendered by general officers, two commending the applicant's performance and one recommending he be selected to be a member of a Joint Contact Team;

	h.  a Naval War College, Newport, Rhode Island, letter, dated 30 January 2004, showing the applicant successfully completed the Naval War College graduate-level nonresident course in National Security Decision Making;

	i.  an extract from Army Regulation 135-155 showing the eligibility for consideration and general qualifications for promotion selection for USAR and ARNG commissioned officers and warrant officers.  In pertinent part, it shows successful resident completion of the Naval Command and Staff College is considered an equivalent for completion of the Army Command and Staff College.  This extract also shows a Reserve commissioned officer's years of service are the greater or the sum of years of service as a commissioned officer of any component of the Armed Forces or the Army.  This is without specification of the component and the years of constructive service credited or the number of years by which the officer's age exceeds 25 years; and
	j.  an official photograph, dated 12 June 2009.

19.  During the processing of this request, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, U.S. Army Human Resources Command, St. Louis, Missouri, dated 4 August 2009.  The advisory official noted the applicant was considered but not selected for promotion by the 2002 DA Reserve Components COL AMEDD Selection Board.  He also noted the applicant's completion of the USMC Command and Staff College occurred on 30 April 2003 after the board convened and would not have been considered by the 2002 board.

20.  The advisory official also noted the applicant was not considered for promotion by the 2003 Selection Board because he was assigned to the Retired Reserve on 15 April 2003 due to the fact he had attained the maximum years of service.  The advisory official cited Army Regulation 135-155, paragraph 2-5h, which states an officer who has an established date for removal from the Reserve Active Status List (RASL) that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible, is not eligible for consideration.  He opined that since the applicant's retirement date was within 90 days of the convening date of the board (28 May 2003), he was not eligible for consideration by the board.

21.  On 28 August 2009, the applicant provided a rebuttal to the advisory opinion wherein he contended, in effect, he was prematurely placed in the Retired Reserve based upon an erroneous MRD.  He also contended his MRD should have been revised by approximately 3 years based on his break in active service and the period he spent in the USMCR [while attending the USMC Command and Staff College].

22.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  Paragraph 7-2 provides guidance on length of Reserve service.  It states that the actual removal date will be 30 days after:  (a) the individual completes 28 years of commissioned service if under age 25 at initial appointment or (b) the individual's 53rd birthday if age 25 or older at initial appointment.  However, the implementation of the Reserve Officer Personnel Management Act (ROPMA) changed the removal date for LTC's to 28 years of active commissioned service or age 60, whichever occurs earlier.

23.  Title 10, U.S. Code, section 101(d)(4), states the term "active status" means the status of a member of the Reserve Component who is not in the Inactive Army National Guard or Inactive Air National Guard, on an inactive status list, or in the Retired Reserve.

24.  Title 10, U.S. Code, section 14507(a), states that each Reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of LTC or commander on the RASL and who is not on a list of officers recommended for promotion to the next higher grade shall be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for reconsideration of his previously denied requests for recalculation of his MRD and immediate consideration by an SSB under the 2003 selection criteria were carefully considered.

2.  The evidence of record shows that the applicant was appointed in the NYARNG and granted Federal Recognition on 16 August 1974, at the age of 26, with an established MRD of 15 August 2002, under ROPMA provisions.

3.  The applicant's birth date is 18 January 1948 and he did not attain 60 years of age until 18 January 2008.  So, it is clear that his original MRD of 15 August 2002 was based upon his projected completion of 28 years of commissioned service in an active status commencing on his initial date of appointment of 16 August 1974.

4.  The evidence shows the applicant was removed from the RASL and transferred to the Inactive National Guard for one year during the period 1 June 1983 through 31 May 1984.

5.  Title 10, U.S. Code, section 101(d)(4), provides the time a member of the Reserve Component is in the Inactive Army National Guard is not considered to be in an "active status."  Therefore, the time the applicant spent in the Inactive National Guard should not be included when calculating his total years of commissioned service in an active status.

6.  In addition, although the ARPC Form 249-2-E shows he had a break in commissioned service from 10 May 1983 through 9 May 1985, evidence of record shows he had been transferred to the USAR Control Group (Standby), an active status, effective 31 May 1984.  Therefore, it appears that that break in service entry on the form is incorrect.
7.  Accordingly, following the applicant's break in active status and upon reentry to an active status, a new MRD of 15 August 2003 should have been established.

8.  Instead, the applicant was prematurely removed from the RASL and assigned to the Retired Reserve effective 15 April 2003 based upon the erroneous assumption he had completed the maximum authorized years of service on 1 September 2002.

9.  The applicant's contention that his MRD should also be adjusted based upon he was assigned to the USMCR is unfounded due to the fact that Title 10, U.S. Code, section 14507(a), does not stipulate between the various branches of the military when accounting for total commissioned service in an active status; it is cumulative.

10.  In addition, other evidence of record does not support the entry on his AHRC Form 249-2-E that he served in the USMCR during the period May 2002 to May 2003.  In September 2002, the applicant had responded to a notification from the U.S. Army Reserve Personnel Command that he desired to continue in an active status in the USAR.  Therefore, that appears to be an erroneous entry.

11.  The evidence shows the applicant's MRD was changed to the correct date of 15 August 2003 in the TOPMIS database at some point in time following his retirement.  Therefore, there is no need for further correction of his MRD.

12.  The evidence shows the applicant successfully completed the USMC Command and Staff College on 30 April 2003.

13.  It is reasonable to presume that had he not been forced to transfer to the Retired Reserve prematurely, the applicant would have returned to the USAR Control Group (Reinforcement) and remained in an active status until his revised MRD of 15 August 2003.

14.  Unfortunately, due to the fact his newly-established MRD of 15 August 2003 was 90 days or less from the convening date of the 2003 DA Reserve Components COL AMEDD Selection Board, he still would not have been eligible for consideration.

15.  Based on the foregoing, the applicant is entitled to:

* revocation of his retirement orders C-04-310783, dated 15 April 2003
* reinstatement on the RASL for the period 15 April 2003 through 15 August 2003
* issuance of retirement orders with an effective date of 16 August 2003

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR2003093364, dated 20 April 2004.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* voiding U.S. Army Reserve Personnel Command Orders C-04-310783, dated 15 April 2003
* reinstating him on the RASL for the period 15 April 2003 through 15 August 2003
* issuing him retirement orders with an effective date of 16 August 2003

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to recalculation of his MRD and immediate consideration by an SSB under the 2003 selection criteria.



      _________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)                                         AR20090010876



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ABCMR Record of Proceedings (cont)                                         AR20090010876



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