BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090014261 


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, that her 6 November 2008 discharge orders from the U.S. Army Reserve (USAR) Control Group (Reinforcement) to the Standby Reserve (Inactive List) for failure to submit an AHRC Form 4145 (Election of Options- Military Service Obligation (MSO)) be voided.

2.  The applicant states that in July 2008, she was assigned to the USAR Control Group (Individual Ready Reserve (IRR)) and in August 2008, she received her MSO election.  She executed the election statement and mailed it back to the U.S. Army Human Resources Command (USAHRC), St. Louis, MO.  However, in November 2008, while reviewing her online personnel records, she noticed an order transferring her to the Standby Reserve (Inactive List) for failure to submit an AHRC Form 4145.  She called officials at the USAHRC-St. Louis and explained that she had sent her MSO statement but did not have the proof, such as a certified mail receipt.  She then sent a new election statement on 16 November 2008 but her statement was not processed until 26 January 2008 [sic] (2009).  Consequently, not only did USAHRC-St. Louis end her retirement year on 6 November 2008, but also she was not brought back to the USAR Control Group (Reinforcement) until 26 January 2009.

3.  The applicant also states that she spent hours on the phone with USAHRC-St. Louis officials trying to rectify the situation until one official informed her that her (the official's) office could not change the orders without revocation and a petition to this Board.  She adds that she has lost an entire year toward retirement.  She also adds that her word should be accepted as an officer and a 
Judge Advocate General (JAG) that she executed and submitted a timely election statement that was either inadvertently lost or misplaced by USAHRC-St. Louis and that her Retirement Year Ending (RYE) date should be adjusted.

4.  The applicant provides a copy of her ARPC Form 249-E (Chronological Statement of Retirement Points), dated 27 April 2009; a copy of email exchange, dated 27 April and 26 May 2009, with a USAHRC, St. Louis official; a copy of Orders C-11-819049, issued on 6 November 2008, by USAHRC-St. Louis, releasing her from the USAR Control Group (Reinforcement) to the Standby Reserve (Inactive List) and Orders C-01-901344, issued on 26 January 2009, by USAHRC-St. Louis releasing her from the Standby Reserve (Inactive List) back to the USAR Control Group (Reinforcement); and a copy of her AHRC Form 4145, dated 6 August 2008, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was appointed as a JAG Corps (JAGC) first lieutenant in the USAR and executed an oath of office on 21 January 1996.  She entered active duty on 21 January 1996, served in various positions, and was honorably discharged from active service in the rank/grade of major (MAJ) on 15 September 2005.

2.  The applicant's records also show she was appointed as a MAJ in the JAGC of the USAR and she executed a DA Form 71 (Oath of Office - Military Personnel) on 12 October 2005.  She was assigned as an Individual Mobilization Augmentee (IMA) to the Office of the Deputy Under Secretary of Defense, Pentagon, DC, and she was later reassigned to the Office of General Counsel, Defense Intelligence Agency, Pentagon, DC.

3.  On 18 July 2008, the applicant was reassigned from her unit of assignment to the USAR Control Group (Reinforcement) due to loss of qualification under the provisions of Army Regulation 140-145 (Individual Mobilization Augmentee Program).

4.  On 6 August 2008, USAHRC-St. Louis, mailed the applicant an AHRC Form 4145 instructing her to make an election to (a) transfer to a Selected Reserve unit, (b) remain in the IRR, (c) tender an unqualified resignation, or (d) transfer to the Retired reserve if otherwise qualified.  However, there is no indication that the applicant made an election.

5.  On 22 September 2008, USAHRC-St. Louis, mailed the applicant a second AHRC Form 4145 instructing her to make an election. 

6.  On 6 November 2008, USAHRC-St. Louis, published Orders C-11-819049, releasing the applicant from the USAR Control Group (Reinforcement) and assigning her to the Standby Reserve (Inactive List) for failure to complete her AHRC Form 4145 election statement.

7.  On 17 November 2008, the applicant completed her AHRC Form 4145 election statement.  She elected to transfer to the Selected Reserve.  The statement was received at USAHRC-St. Louis on 26 November 2008.

8.  On 26 January 2009, USAHRC-St. Louis, published Orders C-01-901344, releasing the applicant from the Standby Reserve (Inactive List) and assigning her to the USAR Control Group (Reinforcement).

9.  During April and May 2009, the applicant exchanged email traffic with an official at USAHRC-St. Louis regarding the period from 7 November 2008 to
26 November 2008.  She was informed that that office did not have the authority to backdate the orders to 26 November 2008, the date the AHRC Form 4145 election statement was received at USAHRC-St. Louis.

10.  Department of Defense (DOD) Directive 1235.13, paragraph 4.5, in pertinent part states officers who have fulfilled their MSO and have not taken action to elect to remain in the IRR shall be advised of the requirement to remove them from the military.  The Military Departments shall remove those officers from the military within 2 years after fulfillment of the officer’s MSO unless they positively elect to remain in the IRR past their MSO.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that her 6 November 2008 discharge from the USAR should be voided and she should be reinstated in the IRR.

2.  The evidence of record shows that USAHRC-St. Louis officials mailed the applicant an AHRC Form 4145 election statement on two occasions; however, there is no documentary evidence that she responded or made an election.  Accordingly, USAHRC-St. Louis released her from the USAR Control Group (Reinforcement) and transferred her to the Standby Reserve (Inactive List) on
6 November 2008.  There is neither an error nor an injustice.

3.  However, the applicant subsequently completed an AHRC Form 4145 election statement on 17 November 2008 that it was received at USAHRC-St. Louis on
26 November 2008.  It is unclear why the orders that released her from the Standby Reserve (Inactive List) back to the USAR Control Group 
(Reinforcement) were completed on 26 January 2009, some 2 months after receipt by USAHRC-St. Louis officials.  In all fairness, the effective date should have been 26 November 2008.

4.  It also appears that the applicant submitted a timely AHRC Form 4145 election statement earlier than 17 November 2008, which may have been inadvertently lost or misplaced.  Additionally, she made every effort by phone, mail, and email with USAHRC-St. Louis officials to rectify the situation.  Therefore, in the interest of justice, USAHRC-St. Louis Orders C-01-901344 that transferred her back to the USAR Control Group (Reinforcement), effective
26 January 2009, should be voided.

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 Department of the Army records of the individual concerned be corrected by voiding Orders C-01-901344, issued by the USAHRC-St. Louis, MO, on
26 January 2009.



      _________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)                                         AR20090014261



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ABCMR Record of Proceedings (cont)                                         AR20090014261



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