IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100008775 


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 his mandatory removal date (MRD) be adjusted.
 
2.  The applicant states that due to an improper officer evaluation report he was discharged from the U.S. Army Reserve (USAR).  After application to the Army Board for Correction of Military Records (ABCMR), he was reinstated as a commissioned officer in the USAR in the rank and grade of major/pay grade O-4.  However, his MRD was not adjusted and for him to continue with his professional development as a commissioned officer, his MRD must be extended by 2 years so he can complete the required academic service obligation for senior service college (SSC). 

3.  The applicant provides the following evidentiary documents in support of his application:

	a.  ABCMR Record of Proceedings Docket Number AR20040001879, dated 9 December 2004;

	b.  Order R057-18 issued by Headquarters, U. S. Army Special Operations Command on 26 February 2001;

	c.  Orders C117-02 issued by Headquarters, U. S. Army Civil Affairs and Psychological Operations Command (A) on 27 April 2005;

	d.  U.S. Army Human Resources Command, St-Louis (HRC-STL) memorandum dated 14 June 2005;
	e.  HRC-STL email notification, dated 15 August 2008, reference removal from SSC candidate status; and

	f.  U.S. Army, Office of the Chief, Army Reserve memorandum, dated 27 August 2008, reference MRD exception to policy and related documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 March 1956.  With prior enlisted service, he was appointed in the USAR as a second lieutenant on 15 January 1985 in the Adjutant General Corps.  He was 28 years, 10 months, and 6 days old.  He completed his initial officer basic course.  He is currently in the USAR in an active status.  

2.  The applicant was considered and not selected for promotion to major (MAJ) by the 1999 and 2000 Reserve Components Selection Boards (RCSB).  Therefore, as an operation of law he was discharged on 1 February 2001.  

3.  On 26 August 2002, he enlisted in the USAR entering the noncommissioned officer corps as a sergeant in pay grade E-5.  

4.  On 17 September 2003, a Department of the Army Standby Advisory Board convened and recommended him for promotion to MAJ using the RCSB calendar year (CY) 2000 MAJ promotion criteria.  This board established his MAJ date of rank as 19 July 2000.

5.  On 9 December 2004, the ABCMR in AR20040001879 voided his USAR enlistment, reinstated him to his previous Reserve commissioned officer status, and promoted him to MAJ based on his selection by the DA Standby Advisory Board.  In addition, the ABCMR directed that his pay during his USAR enlisted status be offset and payment made of any difference that was due between sergeant's pay and major's pay.  

6.  On 3 August 2006, the applicant was notified he was eligible for retired pay at age 60 based upon completion of the required years of qualifying reserve service.

7.  On 5 February 2007, the applicant was promoted to lieutenant colonel with an effective date of rank of 5 February 2007.

8.  By memorandum, on 27 August 2008, the Office of the Chief, Army Reserve, Director for the Senior Leader Development Office denied the applicant's exception to policy request to extend his MRD in order to be considered eligible for consideration to attend the Army War College Distance Education Program by the FY 08 Professional Development Education SSC Board.  Within this memorandum, his MRD was shown as 1 March 2013.  This memorandum further states "the only waivers for eligibility requirements that will be considered are for military technician, who may request waiver for MRD, up to age 60.  No other requests for waivers of eligibility requirements will be considered." 

9.  In the processing of this case, an advisory opinion was obtained from HRC-Fort Knox.  In its opinion, the Chief of Personnel Actions Branch recommended adjusting the applicant’s MRD based on his break in commissioned service totaling 3 years, 11 months and 6 days.  The recommended MRD date was based in the statute that requires commissioned officers to be removed from the active status list of the USAR upon their 60th birthday.  The Chief of Personnel Action Branch recommends adjusting his MRD to 10 March 2016 based on the maximum age of 60 years statute. 

10.  By email, the applicant concurred with the favorable advisory opinion on 29 October 2009.

11.  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.

12.  Title 10, U.S Code, section 14509, states a Reserve commissioned officer in a grade below brigadier general who has not been recommended for promotion to the grade of brigadier general shall, on the last day of the month in which the officer becomes age 62 years of age, be separated by discharge or retirement for maximum age.

13.  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 length of service.  It specifies that first lieutenants, captains, majors, and lieutenant colonels shall be removed on the earliest of the following dates:  at 28 years of commissioned service if under age 25 at initial appointment or on their 53rd birthday if age 25 or older at initial appointment.  Officers who are not removed for another reason will be removed when they reach the maximum age of 60. 

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant executed an oath of office and was commissioned in the USAR on 15 January 1985 at the age of 28 years.  As an operation of law, the maximum length of service for a Reserve lieutenant colonel is 28 years commissioned service.  Therefore, an MRD date of 15 January 2013 was established based on his initial appointment date.  Taking into consideration Army Regulation 140-10 policy, his MRD based on maximum age is 10 March 2009, the date he turns 53 years old.
 
2.  The advisory opinion provided by HRC-Fort Knox did not take into consideration that the ABCMR voided the applicant's enlistment contract and reinstated him as a Reserve commissioned officer after a Standby Advisory Board had selected him for promotion to major based on CY 2000 criteria.  The ABCMR decision also included financial compensation for monies due between the difference in pay and entitlements as an enlisted Soldier in the rank of sergeant and a commissioned officer in the rank of major.  With this Board action, the applicant, in effect, was made whole.  Therefore, he did not have a break in service of 3 years, 11 months, and 6 days as reported in its advisory opinion. 

3.  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 basis to grant him his requested relief to extend his MRD to 10 March 2016, the date he attains age 60. 

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 for correction of the records of the individual concerned.

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)                                         AR20100008775





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)