IN THE CASE OF:	

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090017734 


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 an earlier request to correct his mandatory removal date (MRD) from 9 June 2009 to 9 June 2013 by excluding retirement years 1984 through 1988 from his record.

2.  The applicant states, in effect, that there is additional evidence or argument that was not considered by the Board when it denied his original application.

3.  The applicant provides a letter of recommendation, dated 13 October 2009, from retired Special Forces Colonel M____ R. K____.

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 AR20090005577 on 4 August 2009.

2.  The letter of recommendation provided by Colonel M____ R. K____, Retired, dated 13 October 2009, is the new evidence that requires the Board to reconsider the applicant's initial request.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 13 June 1978 for a period of 6 years in a troop program unit.  He completed split-option training, attending and graduating from basic training on 19 August 1978 and advanced individual training on 15 August 1979 in an active duty for training status.  He was awarded military occupational specialty 11B (Infantryman).

4.  A copy of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that on 1 December 1979 he entered the Reserve Officers' Training Corps (ROTC), retaining membership in his USAR unit.  His ROTC contract is not available for the Board's review.

5.  On 9 May 1981, at age 20, he was discharged from his enlisted status for the purpose of accepting a commission in the USAR.

6.  On 10 May 1981, the applicant executed an oath of office and was appointed as a second lieutenant in the USAR in the Military Intelligence Branch for an indefinite term.  The applicant's appointment letter from the U.S. Army First ROTC Region advised him that if he were to change his permanent address for more than 30 days' duration, he was to report this fact with the new address to the custodian of his military records.

7.  On 16 May 1982, the applicant graduated from Boston University.

8.  On 29 October 1982, he completed the Intelligence Officer Basic Course.

9.  Orders 247-8, issued by Headquarters, First U.S. Army, on 22 December 1982, show that the applicant was relieved from his assignment to the 364th Military Company and assigned to the USAR Control Group (Annual Training) effective 6 February 1983 [by a pen and ink correction] for the purpose of applying for an active duty tour.

10.  There is no evidence that the applicant entered active duty service.

11.  On 1 December 1983, the applicant was relieved from his assignment to the USAR Control Group (Annual Training) and mandatorily reassigned to the 364th Military Intelligence Company by Orders C-11-918412 issued by the USAR Personnel and Administration Center (ARPERCEN).  The applicant's home of record (HOR) is the address shown on these orders.

12.  The applicant received an annual Officer Evaluation Report (OER) for the period 1 December 1983 to 30 November 1984.  The rater stated the applicant had not demonstrated the type of leadership traits expected of a junior officer and that the applicant often failed requirements.  The senior rater stated the applicant was assigned to the unit in December 1983 and he was notified three times to report for duty and the applicant did not report for duty until six months later, in June 1984.  The senior rater stated the applicant was absent without authority from unit training assemblies and mandatory annual training and he had failed to take the annual Army Physical Fitness Test (APFT).  As the applicant was absent without authority from his Reserve unit, the senior rater determined the applicant had very limited potential as an officer.  Records show the applicant did not sign this OER but that this evaluation was delivered and receipt acknowledged by a member of the applicant's household at his home of record.

13.  The applicant's record contains a referred OER for the period 1 December 1985 to 30 November 1986.  This OER shows the applicant was absent without authority from required unit training assemblies, did not take the APFT, or attend annual training, and he usually failed requirements.  The senior rater stated the applicant claimed his civilian employment responsibilities outweighed his military obligations.  Based on the applicant's lack of attendance at mandatory training there were very limited opportunities for the evaluators to observe the applicant's duty performance and leadership potential.  Both raters did not recommend promotion.  Records show the applicant did not sign this referred OER but that this evaluation was delivered and receipt acknowledged by a member of the applicant's household at his home of record.

14.  The applicant's official military personnel record was referred to an officer separation board based on the applicant's referred OERs, his documented absences without authority from unit training assemblies, and his unexcused absences from mandatory unit annual training exercises.  On 5 February 1988, the commanding general of ARPERCEN notified the applicant that an officer separation board (date unknown) determined the applicant would be retained as a member of the USAR.  The reasons cited for retaining the applicant in the USAR were that he had prior enlisted service; that his records disclosed many discrepancies concerning his assignment date to his unit and notification of unit training assemblies; that inconsistencies in his military duty assignments existed; that he had produced justification for his absences from mandatory training; and that he had made legitimate and reasonable efforts to have his absences excused.   

15.  On 10 April 1988, the applicant was relieved from his assignment to the 364th Military Intelligence Company and reassigned to the USAR Control Group (Reinforcement) by Orders 67-16 issued by Headquarters, First U.S. Army.  The reason for transfer as stated in these orders was the applicant's civilian employment conflicts with his USAR military training duties.

16.  After the favorable results of the officer separation board that retained the applicant in the USAR, he was promoted to first lieutenant on 10 April 1988.

17.  The applicant's Chronological Statement of Retirement Points shows his creditable service for the retirement year ending (RYE) dates as noted.

RYE Date	Inactive Duty	Membership	Active Duty	Total

12 June 1982	27	15	18	60
12 June 1983	00	15	139	154
12 June 1984	00	15	00	00
12 June 1985	22	15	00	27
12 June 1986	00	15	00	15
12 June 1987	00	15	00	15
12 June 1988	00	15	12	02
12 June 1989	01	15	14	30
12 June 1990	00	15	00	15

18.  On 9 June 1988, the applicant prepared a DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552).  In that application, he requested, in part, that he receive credit for retirement points for the period 5 May 1984 to 10 April 1988.  He contended that he was unable to accomplish any military activity during the period in question.  Documents submitted with the application corroborated the same arguments the applicant currently makes as to why he could not train during this period.  There is no record that the Board received this application.

19.  On an unknown date, the applicant applied to the Department of the Army, Special Review Board requesting that his referred OERs be removed from his official military personnel file.  Accordingly on 22 February 1989, a Special Review Board held at ARPERCEN determined that the applicant's OERs for the period 1 December 1983 to 30 November 1986 were to be deleted from his record and these rating periods declared nonrated.

20.  Based on the applicant's duty performance record and his demonstrated potential as an officer, he was promoted to captain in the Military Intelligence Branch of the Army Reserve on 9 April 1992.

21.  On 1 December 1997, the applicant accepted an appointment in the Massachusetts Army National Guard (MAARNG) from the USAR in his basic branch of Military Intelligence.

22.  On 15 January 1999, the applicant was transferred from the MAARNG to the USAR Control Group (Reinforcement).  His NGB Form 22 (Report of Separation and Record of Service), item 18 (Remarks), shows the applicant was reassigned to the USAR without personal notice due to constructive notification by the Office of the Adjutant General, MAARNG.

23.  Based on the applicant's duty performance records and his demonstrated potential as an officer, he was promoted to major in the Military Intelligence Branch of the Army Reserve on 3 January 2000.

24.  Based on his continued duty performance, completion of required officer professional development training, and his demonstrated potential for positions of increasing responsibility, the applicant was promoted to lieutenant colonel in the Military Intelligence Branch of the Army Reserve on 13 March 2006.

25.  An AGUZ Form 871 (Computation Sheet) shows the applicant's date of birth as 13 October 1960, his initial officer appointment date as 10 May 1981, and his MRD as 9 May 2009.

26.  On 24 August 2006, the applicant received written notification from the U.S. Army Human Resources Command-St. Louis that he was eligible for retired pay at age 60 as he had completed the required years of qualifying reserve service.

27.  On 29 June 2009, the applicant was transferred to the Retired Reserve due to completing his maximum 28 years of commissioned service.

28.  In the applicant's original application, there were three letters of recommendation from senior government and military officials stating the applicant should be retained in the Army Reserve beyond his MRD date so that he could continue to perform his duties in the intelligence community of the Department of Defense.  The three officials stated that the applicant devoted personal time often without financial compensation to assist them in understanding radical terrorist ideology by sharing his extensive knowledge of the Middle East with Members of Congress, senior military officers, senior government officials, and educators at universities.  The applicant also assisted in the assessment of the government's ability to safeguard the Nation's nuclear arsenal.  All three officials recommended the applicant be retained in the active Reserve and that his MRD date be extended so he could accept a position as the military liaison officer at the Terrorist Screening Center, National Security Branch, Federal Bureau of Investigation.

29.  The recommendation letter, dated 13 October 2009, submitted by Colonel M____ R. K____, Retired, states, in effect, that he has known the applicant for over 15 years of which 11 of those years were in his capacity as a member of the Regular Army.  He states the applicant is a dedicated Military Intelligence professional who has pursued advanced studies in International Relations from Boston University and concurrently from the Naval War College.  He continues by stating the applicant is an Army Reserve officer who devoted countless volunteer hours as a nonpaid drilling Reservist to the 10th Special Forces Group (Airborne).  The applicant also sought positions of increasing responsibility within the intelligence community in the greater Washington, DC, area commuting from his home in Massachusetts.  With the applicant's extensive knowledge of the Middle East, he relied upon the applicant for his knowledge of politics and history in addition to his outreach network to civilians and faculty at Harvard and Tufts Universities.

30.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides, with some exceptions, for the separation of majors, lieutenant colonels, and colonels for maximum age and/or service.  It specifies that first lieutenants, captains, majors, and lieutenant colonels may not exceed 28 years of commissioned service if under age 25 at initial appointment.

31.  Army Regulation 140-10 defines "active status" as the status of an Army National Guard of the United States or USAR commissioned officer, other than a commissioned warrant officer, who is not in the Inactive Army National Guard, in the Standby Reserve (Inactive List), or in the Retired Reserve.

32.  Title 10, U.S. Code, section 14507, provides, in pertinent part, that a commissioned officer who holds the grade of lieutenant colonel and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the Reserve Active-Status List) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant executed an oath of office and was commissioned on 10 May 1981 while an undergraduate student at Boston University.  He completed the requirements for graduation, received his degree, and attended his officer basic course in 1982.

2.  The applicant's Chronological Statement of Retirement Points shows his creditable service.  This record shows he performed both active and inactive duty during the retirement years 1984 through 1988 earning creditable retirement points.  With the earning of creditable retirement points during the said period, the applicant has shown that he was actively engaged in the personal management of his own career as a military officer.

3.  The applicant's initial assignment after his commissioning in 1981 and college graduation in 1982 was to a military intelligence unit.  He was not able to comply with his assigned unit's attendance policies due to scheduling conflicts with his civilian employer as a result he received referred OERs and was considered for separation from the Army Reserve.  In 1988, an officer  separation board found in his favor, retaining him in the USAR and transferring him to the USAR Control Group due to his civilian employment conflicts.  A separate special review board also met and directed that his referred OERs be deleted from his record.  

4.  These two boards required the applicant to be involved in the application process to include petitioning the boards to favorably find in his favor.  These actions and petitions to the boards show that the applicant was engaged in his own military career development during the retirement years 1984 through 1988 which are the retirement years he wants removed from his record.  

5.  With the applicant's personal involvement in managing his own career, especially during the period in question, there are no statutory directives that would support removing the four years from his record and extending his MRD an additional four years.  The statute, which is applicable to all commissioned officers of the Armed Forces, states officers in the rank of lieutenant colonel or below shall be removed from the active Reserve and either discharged or transferred to the Retired Reserve at 28 years of commissioned service.

6.  It is acknowledged that the applicant's early years as a junior officer were turbulent.  However, this is not a matter of inequity or an injustice.  The applicant was an active member of the USAR for 28 continuous years and his superiors and the U.S. Army recognized his demonstrated potential when he was selected for and promoted to lieutenant colonel.  Upon attaining 28 years of commissioned service, he was transferred to the Retired Reserve based on the statutory requirement to not exceed 28 years of commissioned service for a lieutenant colonel. 

7.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the requested relief to correct his record to remove his retirement years 1984 to 1988 from his record. 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20090005577, dated 4 August 2009.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20090017734



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ABCMR Record of Proceedings (cont)                                         AR20090017734



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