IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100008761 


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 reinstatement in the U.S. Army Reserve (USAR) so he may qualify for retirement benefits.

2.  The applicant states he was unable to have his security clearance renewed because he did not sign an authorization for release of the information to the investigator.  Months after this decision, he received a notification that he was being discharged from the USAR with an honorable discharge, but 2 years short of his eligibility for retirement.  He was a member of the USAR for 28 years of which 18 years were good years.  His service was honorable and his record was without blemish.

3.  The applicant did not provide any additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was born on 27 May 1949 and initially enlisted in the U.S. Air Force (USAF) on 22 August 1967.  He was honorably released from active duty on 21 August 1972 and transferred to the USAF Reserve for completion of his Reserve obligation.

3.  After a break in service, he was appointed as a second lieutenant in the USAR and executed an oath of office on 1 May 1983.  He attended the Army Medical Department Officer Basic Course and was subsequently promoted to first lieutenant (1LT) on 24 May 1986.

4.  On 12 March 1987, he was appointed as a Medical Services 1LT in the Pennsylvania Army National Guard and on 1 March 1988 he was promoted to captain.

5.  On 5 October 1989, he was honorably released from the Army National Guard and transferred to the USAR Control Group (Reinforcement) after having resigned for personal reasons.

6.  During the period May 1990 through May 2000, he served in several staff and leadership positions within various troop program units (TPU's) and he was promoted to major (MAJ) on 28 February 1995.  Not all of his retirement years during this period were qualifying years of service.

7.  On 28 March 2000, he was transferred from his TPU to the USAR Control Group (Reinforcement) for personal reasons.  Additionally, from this date through 1 April 2006 he was not an active participant in unit training assemblies, annual training, or any periods of active duty.

8.  On 20 November 2001, the U.S. Army Human Resources Command, St. Louis (HRC-STL), MO, notified him by memorandum that he was considered for promotion to lieutenant colonel (LTC) by the mandatory Department of the Army (DA) Reserve Components Selection Board (RCSB) that convened on 30 May 2001, but he was not selected.  

9.  On 28 February 2002, HRC-STL notified him by memorandum that he was considered for promotion to LTC by the mandatory DA RCSBP that convened on 5 September 2001, but he was not selected.  The memorandum further notified him that his career manager may be able to assist in improving his official file and advise him regarding specific actions which may increase his potential for promotion.
10.  On 17 October 2002, HRC-STL notified him by memorandum that he was considered for promotion to LTC by the mandatory DA RCSBP that convened on 28 May 2002, but he was not selected.  The memorandum again notified him that his career manager may be able to assist in improving his official file and advise him regarding specific actions which may increase his potential for promotion.

11.  The HRC-STL Integrated Web Services site shows the following entries pertaining to the applicant:

	a.  on 15 April 2003, an information electronic mail (email) on promotion board, educational waiver, military education, record update, Army Knowledge Online, retirement points and good years, military career, and mobilization, and for some, the email also discussed bad address, outdated physical, and/or outdated security clearance;

	b.  on 21 October 2003, a mass email to Individual Ready Reserve MAJ's announcing a vacancy for an 01A (branch immaterial) Individual Mobilization Augmentee (IMA) position and another mass email to see if he was interested in a TPU position outside the continental United States;

	c.  on 31 October 2003, an email inquired if he was interested in an IMA mobilization at Fort Lewis, WA, in February 2004;

	d.  on 5 November 2003, a mass email of vacancies for the 100th Division, USAR; and

	e.  on 17 May 2004, a second notice of a 179-day Pentagon tour.

12.  On 12 August 2005, HRC-STL notified him by memorandum that he was considered for promotion to LTC by the mandatory DA RCSBP that convened on 10 May 2005, but he was not selected.

13.  On 18 October 2005, as his retention under the provisions of Title 10, U.S. Code, section 12646, expired, HRC-STL published Orders D-10-533974 honorably discharging him from the USAR effective 1 April 2006.

14.  On 7 February 2006, his career manager emailed him letting him know of a mobilization opportunity to serve as a safety officer in Iraq.

15.  On 28 December 2009, he submitted an application for retired pay.  However, his application was denied because he had only served 18 years of qualifying service toward nonregular retirement.

16.  His USAR Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows he completed 18 years of qualifying service toward nonregular retirement.  This statement also shows a break-down of his total career points by retirement year ending date.

17.  He turned 60 years of age on 27 May 2009.

18.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) provides for the assignment, transfer, and separation of USAR personnel.  Paragraph 7-4b states that an officer who twice fails selection for promotion to MAJ will be discharged unless eligible for and requests transfer to the Retired Reserve.  Paragraph 7-12 b states that officers who have over 18 years of qualifying service for retirement will be retained for up to 3 additional years in order to attain 20 years, and officers who have over 19 years of qualifying service for retirement will be retained for up to 2 additional years in order to attain 20 qualifying years for retired pay at age 60.

19.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) provides the policy on nonregular service qualifying for retired pay at age 60.  It states to be eligible for retired pay at age 60, an individual must have completed a minimum of 20 years of qualifying service and the last 8 years must have been served in a Reserve Component (RC). 
The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 
20-year letter within 1 year after he/she completes the service.  Fifteen points are earned each year for Reserve membership.  Additional points must be earned by participation in Reserve training, active duty, or by completing correspondence courses.

20.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  It states the minimum years in the lower grade for promotion from MAJ to LTC is 4 years and the maximum years in the lower grade for promotion from MAJ to LTC is 7 years.  A MAJ will be considered for mandatory promotion to LTC the first time prior to completing 7 years of maximum time in grade (MTIG) as a MAJ so that, if selected, the MAJ can be promoted to LTC at the MTIG.

21.  Title 10, U.S. Code, section 12646, pertains to retention of commissioned officers after completion of 18 years but less than 20 years of service.  It states, if on the date prescribed for the discharge or transfer from an active status of a Reserve commissioned officer he is entitled to be credited with at least 18 but less than 19 years of service computed under section 12732 of Title 10, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of Title 14, without his consent before the earlier of the following dates on which he is entitled to be credited with 20 years of service computed under section 12732 of this title or the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be reinstated in the USAR so he may qualify for retirement benefits was carefully considered but was found to be without merit.

2.  The evidence of record shows he was promoted to MAJ on 28 February 1995. He was considered for promotion to LTC by the September 2001 RCSB, but he was not selected.  He was also considered by the May 2002 RCSB, but he was again not selected.  By rule, as a two-time promotion non-select, he was required to be discharged within 6 months of his second non-selection.  However, since he had completed 18 years of qualifying service toward nonregular retirement, he was retained for 3 additional years in order to attain 20 years.

3.  During the period March 2000 through May 2006, aside from his membership points and despite the multiple emails he received regarding available opportunities and the ample opportunities he had to earn points, he failed to earn any creditable points toward nonregular retirement.  He was also considered for promotion to LTC two more times, but he was not selected.  Once his retention period expired, he was honorably discharged from the USAR.  There is neither an error nor an injustice.

4.  Contrary to his contention, his discharge from the USAR was not caused by his lack of a security clearance.  His discharge was caused by his two-time non-selection for promotion.  An officer is responsible for knowing when he will be considered for promotion and what the requirements are for promotion eligibility according to the regulation.  An officer is also responsible for ensuring that his official personnel management files are correct and up to date and that HRC-STL has his correct and current address.  He was correctly and justly discharged as a result of two-time non-selection for mandatory promotion to LTC.

5.  In view of the foregoing, 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)                                         AR20100008761



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ABCMR Record of Proceedings (cont)                                         AR20100008761



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