IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090012851 


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:

Applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that it be shown that the applicant enlisted in the Army National Guard (ARNG).

2.  Counsel states that the applicant attempted to enlist in the U.S. Army Reserve (USAR) when the 2006 Defense Authorization Act changed the maximum allowable enlistment age to 42.

3.  He passed all of the tests for enlistment but before he could report for initial active duty for training, he was informed he was disqualified from the service because he would not be able to complete processing and enter active duty before he turned age 42.

4.  In February 2008, the applicant attempted to enlist in the ARNG but was again disqualified due to his age.

5.  Counsel argues that the ARNG erred when they disqualified the applicant for enlistment due to his age.  Title 10, U.S. Code (USC), section 12102 confers the authority to the service secretaries to set age qualifications for enlistment, and Title 32, USC, section 313(a), states that "to be eligible for original enlistment in the ARNG, a person must be at least age 17 and under age 45."  Because of the deference to other federal laws in Title 10, USC, section 12102; Title 32, USC, section 313, is the controlling statute in the applicant's case.

6.  Counsel provides argument and legal precedents to show the ABCMR has the authority to effect the relief sought by the applicant.

7.  Counsel provides documents which he lists in his application. 

CONSIDERATION OF EVIDENCE:

1.  In a letter from the U.S. Army Recruiting Command (USAREC), dated 27 June 2007, it was stated applicants for enlistment in the Reserve component must complete their processing and enter active duty (departure date) on or before their 42nd birthday.  Since the applicant had already reached the age of 42 and did not have any prior honorable active military service, he was disqualified for enlistment because he exceeded the age limitation requirements for enlistment.

2.  In a letter from USAREC, dated 24 September 2007, it was stated that due to a recruiting oversight the applicant was permitted to undergo evaluations in determining his complete enlistment eligibility status while exceeding the age limitation requirements for enlistment.  At the time the applicant was processing for enlistment, he exceeded his 42nd birthday by 9 months.  As such, he exceeded the maximum age requirement for enlistment and was disqualified for enlistment.

3.  In a letter from the National Guard Bureau (NGB), dated 6 March 2008, it was stated that the NGB published an Enlistment Guidance Memorandum which states that "Applicants are eligible for enlistment if they are 18 years of age and less than 42 years of age.  Non-prior service applicants enlisting under this policy must ship to initial active duty for training on or before their 42nd birthday."  It was also stated that because the maximum age policy is established by the Secretary of the Army as authorized by federal law, the NGB did not have the authority to either change the standard or grant an exception to policy.

4.  The Defense Authorization Act of 2006 (Public Law 109-163), Section 543, amended Title 10, USC, section 505(a), by striking "thirty five years of age" and inserting "forty-two years of age."

5.  Title 10, USC, section 505(a), states that the Secretary concerned may accept original enlistments in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard, as the case may be, of qualified, effective, and able-bodied persons who are not less than seventeen years of age nor more than 42 years of age.

6.  Title 10, USC, section 12102(b), states that except as otherwise provided by law, the Secretary concerned shall prescribe physical, mental, moral, professional, and age qualifications for the enlistment of persons as Reserves of the armed forces under his jurisdiction.

7.  Title 32, USC, section 313(a), states that to be eligible for original enlistment in the National Guard, a person must be at least age 17, and under age 45.

DISCUSSION AND CONCLUSIONS:

1.  The Defense Authorization Act of 2006, Section 543, amended Title 10, USC, section 505(a), by striking "thirty five years of age" and inserting "forty-two years of age.  While Title 10, USC, section 505(a), specifies that it applies to enlistment in the Regular components, this is the maximum age allowed for initial enlistment in any component, including Reserve components.

2.  Title 10, USC, section 12102(b), states that the Secretary concerned shall prescribe age qualifications for the enlistment of persons as Reserves of the armed forces under his jurisdiction.  This provision of law is to allow individual services to specify the maximum age of enlistment based upon their own unique requirements.  

3.  In the case of Soldiers enlisting in the ARNG, the NGB provides the maximum age for initial enlistment through the publication of Enlistment Guidance Memorandum, which currently specifies that age 42 is the maximum allowable age.  For the ARNG, this publication is the action taken by the Secretary to establish maximum age qualifications in accordance with Title 10, USC, section 12102(b).

4.  Title 32, USC, section 313(a), simply states that to be eligible for original enlistment in the National Guard, a person must be at least age 17 and under age 45.  This is a statutory provision passed by Congress and signed into law by the President.  It is not action taken by the Secretary in accordance with Title 10, USC, section 12102(b).  This section sets the upper age limit which the Service Secretaries may not exceed in determining age qualifications for initial enlistment.  It does not establish the age qualification to be used.  In addition, the ABCMR does not have authority over Title 32, USC, matters.  The ABCMR is limited to making recommendations to the ARNG which the NGB or State may accept or reject at their discretion.


5.  In the applicant's case, he was over age 42 when he attempted to enlist in the ARNG.  As such, he exceeded the maximum age for an initial enlistment.  As such, he was properly denied enlistment.

6.  Given the rigors inherent with initial entry training and deployments, Congress and the Services deemed it necessary to mandate a maximum age for individuals to initially enlist in the Armed Forces.  While it is unfortunate that the applicant waited to enlist until after he exceeded the mandated maximum age, there are no provisions to waive this maximum age.  As such, there is no basis for granting the applicant's request.

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.




      _______ _   _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)                                         AR20090012851



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ABCMR Record of Proceedings (cont)                                         AR20090012851



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