IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100011325 


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 request, in effect, amendment to her DD Form 214 (Certificate of Release or Discharge from Active Duty) and discharge orders to show she was released from active duty (REFRAD), not discharged, and was transferred to the Individual Ready Reserve (IRR).  

2.  She also requests credit for her 3 years of service in the U.S. Army Reserve (USAR) from 18 May 2007 to 17 May 2010, credit for 14 days of annual training that she would have served in the IRR for each of the 3 years since the error occurred, and if any correction action is taken, correction to her records to show she had been in the IRR continuously from 18 May 2007 until the effective date of any corrective changes and that she be given sufficient time to transfer from the IRR to a troop program unit (TPU) to prevent a gap in the time served or loss of her officer appointment.

3.  She states there was a system failure as stated in the 2010 Chief of Appointments, Human Resources Command (HRC), St. Louis, Missouri, email.  In effect, she should have been transferred to the IRR effective 17 May 2007.  

4.  She provides:

* USAR discharge orders
* DD Form 214
* Request for impartial adjudication memorandum
* Email from Office of the Deputy Chief of Staff for Personnel (ODCSPER)
* Email to ODCSPER and USAMEDCOM (U.S. Army Medical Command)
* Appointment in USAR request
* Email correspondence from HRC-St. Louis

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 military records show she was appointed in the USAR, Medical Corps (MC), as a captain, effective 27 May 1994.  She was ordered to active duty as an obligated volunteer officer.  She entered on active duty on 16 June 1994.  She was promoted to major effective 12 June 2000.

3.  On 12 May 2006, she was advised of her twice non-selection for promotion to lieutenant colonel (LTC).  She was also advised of her selection for continuation on active duty until completion of her active duty service obligation.  She was advised if she declined the selective continuation, she must be separated.  As an exception, if she had an active duty service obligation, she could continue on active duty until fulfillment of all active duty service obligations.  The available election form located in her service records is incomplete as to her election.

4.  On 22 March 2007, she requested to withdraw her previous unqualified resignation, to decline selective continuation on active duty, and to continue to serve in the USAR.  

5.  On 22 March 2007, ODCSPER advised her that she must specify a requested separation date of 15 May 2007.

6.  On 5 April 2007, she elected to serve in the IRR for at least 3 years as a condition to receive separation pay.  She stated she desired an appointment in the USAR and requested a USAR commission.

7.  Orders 089-0002 were issued by Headquarters, U.S. Army Garrison, Fort Detrick, MD, on 30 March 2007, discharging her from the USAR effective 17 May 2007, under the authority of Army Regulation 600-8-24 (Officer Transfers and Discharges).

8.  On 17 May 2007, she was issued DD Form 214 showing she was honorably discharged from active duty for non-selection for permanent promotion, under the provisions of Army Regulation 600-8-24.  Item 9 (Command to Which Transferred) of her DD Form 214 shows the USAR Control Group - IRR.  

9.  She provided an email, dated March 2010, wherein the Chief, Appointments Branch, HRC-St. Louis, advised the Chief, Retirements and Separations, that the applicant was a USAR officer on active duty until 2007 and was never converted to the active component while on active duty.  Consequently, the DD Form 214 and discharge orders should both indicate she was REFRAD, not discharged, and assigned back to the IRR.  That officer could not change those documents 
and the applicant should apply to the ABCMR and request the DD Form 214 and discharge orders be amended to reflect that she was REFRAD and not discharged.

10.  The Chief, Appointments Branch, also advised that the applicant should also request that she receive credit for the past 3 years of being in the USAR so it does not affect anything to do with her separation pay.

11.  Army Regulation 600-8-24 prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Paragraph 5-9 states commissioned officers on active duty list twice non-selected for promotion to the grade of LTC will be involuntarily released or discharged unless they are:  (1) selectively continued; (2) within 2 years of retirement; (3) retired; or (4) a health professions officer, these officers shall be retained on active duty until completion of their active duty service obligation prior to discharge, unless sooner retired or discharged.  HRC-Alexandria will forward the notification memorandum (that states the officer's options) to the individual.

12.  Army Regulation 135-200 (Active Duty for Training, AT, and Active Duty for Special Work of Individual Soldiers) prescribes the policies for ordering USAR Soldiers to AT.  Paragraph 3-2 states USAR unit Soldiers are required to serve on annual training for 14 days during each year.  IRR Soldiers are eligible for training subject to availability of funds.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her DD Form 214 and discharge orders should be amended to show she was REFRAD and transferred to the IRR have been noted.
2.  The evidence shows she was appointed in the USAR, MC, on 27 May 1994, and ordered to active duty to fulfill an active Army requirement.  There is no evidence she was converted to active duty.  She was considered and twice not selected for promotion to LTC.  She was selected for continuation on active duty to fulfill her service obligation.  On 22 March and 5 April 2007, she requested to withdraw her previous unqualified resignation, decline selective continuation on active duty, and to continue to serve in the USAR.  On 17 May 2007, she was honorably discharged from active duty as a USAR officer for non-selection for permanent promotion.  She was issued a DD Form 214 discharging her from active duty and orders discharging her from the USAR.  As a result, she was never transferred to the IRR.

3.  The evidence shows she was a USAR officer at the time of her discharge; therefore, she should have been REFRAD and reverted to the USAR.  As a result, she is entitled to amendment of her DD Form 214 to show she was REFRAD.  Based on her REFRAD and assignment to the IRR, the discharge orders should be voided and she should be issued REFRAD orders, because her USAR appointment was not terminated.  

4.  There is no evidence, a member of the IRR, she would have been approved for annual training at the time to qualify for 14 days annual training credit.  Therefore, she is not entitled to credit for 14 days annual training from 18 May 2007 to the date of corrective action.

5.  In the matter of being allowed sufficient time to transfer from the IRR to a TPU, this issue should be addressed by the AMEDD Career Management Officer, HRC-Ft Knox, for appropriate action.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all the Department of the Army records of the individual concerned be corrected by:
	a.  voiding Orders 089-002, dated 30 March 2007, and issuing orders showing the applicant was released from active duty and assigned to the IRR with an effective date of 18 May 2007;

	b.  amending the applicant's DD Form 214, Item 23 (Type of Separation) to show she was released from active duty; and 

	c.  providing her a corrected DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of 14 days credit for annual training from 18 May 2007 to the date of this corrective action.



      _______ _   __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)                                         AR20100011325



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ABCMR Record of Proceedings (cont)                                         AR20100011325



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