IN THE CASE OF:	 

		BOARD DATE:	  01 April 2010

		DOCKET NUMBER:  AR20090016055 


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 correction of his records to show he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) [commonly known as the Individual Ready Reserve (IRR)] and not discharged on 8 August 2006.

2.  The applicant states it was his belief that he was in the IRR until recently when he sought to join the Ohio Army National Guard (OHARNG).  He has been told that in order for him to have been placed in the IRR at the time of his release from active duty he was required to have completed forms that he never received.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his last DA Form 67-9 (Officer Evaluation Report); a DA Form 1059 (Service School Academic Evaluation Report); promotion orders to first lieutenant; United States Army Infantry Center Orders (corrected copy) 174-6218; a 1st Battalion, 5th Field Artillery Memorandum for Record; a 24th Infantry Division, Fort Riley, KS recommendation for award of the Combat Action Badge and award letter; and his Officer Record Brief.

CONSIDERATION OF EVIDENCE:

1.  On 3 January 2003, he enlisted in the Regular Army (RA) as a commissioned officer candidate.  He completed Officer Candidate School (OCS) on 6 August 2003 and was discharged to accept a USAR commission.

2.  On 7 August 2003 he executed a DA Form 71 (Oath of Office - Military Personnel) and was appointed a second lieutenant in the USAR and entered extended active duty that date.

3.  On 7 February 2005 he was promoted to first lieutenant.

4.  On or about 8 November 2005, in accordance with a Headquarters, Department of the Army manpower realignment directive, the applicant was converted from USAR to RA.

5.  On 20 January 2006, for personal reasons, the applicant submitted an unqualified resignation to be effective 8 August 2006, two days after his completion of his 3-year active duty service obligation period.

6.  On 23 January 2006, the Commanding Officer, 1st Brigade, 1st Infantry Division recommended approval of the applicant's request and noted the applicant was eligible for voluntary separation.

7.  An e-mail, dated 2 March 2006, from the U.S. Army Human Resources Command, Alexandria, VA, states the applicant is approved for an unqualified resignation.  He is to execute a DA Form 71 for a USAR appointment at the time of his discharge, he has a statutory service obligation (MSO) until 2 January 2011, and he may not resign his commission until he completes his MSO.

8.  Headquarters, 24th Infantry Division, Fort Riley, Orders 073-0020, dated
14 March 2006, transferred the applicant to the transition processing center effective 8 August 2006.  The purpose for the transfer was to be discharged from the RA.  The orders include the additional instructions that all of his Reserve of the Army and Army of the United States appointments are terminated and upon discharge he was to be assigned to the USAR Control Group (Reinforcement), St. Louis, MO, with an MSO of 2 January 2011.

9.  The 8 August 2006 DD Form 214 shows the following:

	a.  block 6 (Reserve Obligation Termination Date), the entry "20110102";

	b.  block 9 (Command to Which Transferred), the entry "USAR Con[trol] G[rou]p (Rein[forcement]), 1 Reserve Way, St. Louis, MO 63132";

	c.  block 18 (Remarks), the entry "Service in Kuwait/Iraq:  20040413 - 20040915// Has Completed First Full Term of Service";


	d.  block 23 (Type of Separation), the entry "Discharge";

	e.  block 25 (Separation Authority), the entry "A[rmy] R[egulation] 600-8-24, Para[graph] 3-5"; and

	f.  block 27 (Reentry Code), the entry NA [Not Applicable].

10.  Human Resources Command, St. Louis (HRC-STL) sent the applicant an appointment letter, dated 8 August 2006.  It directed that the applicant complete a DA Form 71 and indicate on their letter that he accepted the appointment.  The letter advised that prompt action on his part was requested because if he did not respond within 90 days of the date of his appointment, it would be automatically canceled.  The applicant was also advised that if he did not accept the appointment he was to return the letter with a statement declining his USAR appointment.  He was further advised that he could not resign his commission until he had completed his MSO.

11.  A copy of the 8 August 2006 HRC-STL letter is not in his military official record.  A copy of the letter was obtained from the officer appointment branch.  This copy is blank at lines for a date of acceptance and effective date, with officer appointment branch personnel indicating that they had received no response to the letter from the applicant.

12.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
3-5 (Rules for Processing Unqualified Resignation) provides the following:

	a.  any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending;

	b.  normally, resignations will not be accepted unless on the requested date of separation the officer has fulfilled the prescribed service obligation; and 

	c.  an officer must serve in the Armed Forces until completion of their statutory military service obligation (MSO).  Being released from active duty (REFRAD) does not terminate the MSO.  An officer has an eight-year MSO.  To waive an officer's MSO, the Assistant Secretary of the Army (Manpower and Reserve Affairs (ASA (M&RA)) must find that the officer has no potential for service under conditions of full mobilization.  An officer who requests resignation before completing the eight-year MSO must agree to accept an indefinite appointment in the USAR to complete such service obligation.  The act of taking the Reserve officer's oath by an Active Army officer is sufficient to simultaneously terminate the officer's RA status by operation of law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states it was his belief that he was in the IRR until recently when he sought to join the OHARNG.  He has been told that in order for him to have been placed in the IRR at the time of his release from active duty he was required to have completed forms that he never received.

2.  At the time the applicant was released from active duty he was required to complete a DA Form 71 accepting a commission as a USAR commissioned officer.

3.  By law, the applicant could not be discharged from the RA unless he agreed to serve the remainder of his period of obligated service in the USAR.  If the applicant did not execute a USAR DA Form 71 he could not be discharged.

4.  As noted in the regulation the act of taking the Reserve officer's oath by an Active Army officer is sufficient to simultaneously terminate the officer's RA status.  The applicant should have completed the oath at or prior to his release from active duty.

5.  Based of the information on the applicant's copy of the DD Form 214, it was reasonable for him to assume that he was properly processed out of the RA and transferred to the USAR.

6.  The applicant still has a period of obligated service and is being delayed in his attempts to become an active member of the OHARNG because of conflicting information as to his proper current status.

7.  Therefore, it would be appropriate to correct the applicant's record to show the applicant executed a DA Form 71 as a USAR commissioned officer on 9 August 2006.









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 showing that the applicant executed a DA Form 71 as a USAR commissioned officer on 9 August 2006.



      __________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)                                         AR20090016055



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ABCMR Record of Proceedings (cont)                                         AR20090016055



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