IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100013334 


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 an extension of his mandatory removal date (MRD).

2.  The applicant states he was readmitted to the Army as a result of action by this Board because it determined he was erroneously discharged and he was credited with good years for the time he was discharged.  He claims that since being reinstated in 2003, he completed the following courses:

* Infantry (IN) Captains' Career Course (CCC)
* Adjutant General CCC
* Civil Affairs (CA) qualification course
* airborne course

3.  The applicant would like the ability to stay in the U.S. Army Reserve (USAR).  However, his MRD is in April 2011 and has not been extended, so he will be unable to achieve the rank of lieutenant colonel and stay in the USAR.  He is seeking an extension of his MRD until at least 2015.

4.  The applicant refers to an officer evaluation report (OER) in support of his application; however, no documentary evidence was submitted.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 5 April 1958.  After completing prior enlisted service in the U.S. Navy and U.S. Navy Reserve, the applicant was commissioned as a second lieutenant in the USAR on 14 May 1983.  He accepted an appointment in the Army National Guard on 4 June 1983.

2.  On 13 May 1986, he was promoted to first lieutenant.

3.  On or about 1 May 1987 he transferred to the USAR.  In 1991, the applicant was transferred to the Retired Reserve as a result of non-selection for promotion to captain.

4.  On 18 April 2002, this Board recommended the applicant be reconsidered for promotion to captain by a special selection board (SSB) and if selected, that he be promoted to captain on the date of his eligibility as determined by Departmental officials.  The Board also recommended that his discharge/transfer to the Retired Reserve be voided and he be credited with qualifying service for Reserve retirement for his respective retirement years from the date of his voided discharge or transfer to the Retired Reserve to the date of his return to active Reserve status.  The Board further recommended that all documents related to his voided non-selection for promotion and his discharge or transfer be expunged from his official military records.

5.  The applicant was selected for promotion to captain by an SSB in 2003 under the 1990 Reserve Component Selection Board criteria and was promoted to captain effective 23 May 1990.  He was reinstated in the active Reserve and credited with qualifying service for each year he was in the Retired Reserve.

6.  On 15 April 2005, a non-prejudicial statement confirming evaluation reports were not submitted for the applicant during the period 15 April 1991 through 6 April 2003 through no fault of his own was added to his official military personnel file.

7.  On 19 July 2005, the applicant was promoted to major with an effective date of 8 June 2005.

8.  During the processing of this case an advisory opinion was obtained from the U.S. Army Reserve Command (USARC) Deputy Chief of Staff, G-1.  This official recommended the applicant's request for an extension of his 4 April 2011 MRD be denied.  He stated the applicant was made whole by his reinstatement into the USAR and being awarded retirement points for the period he was erroneously in the Retired Reserve which resulted in his accrual of sufficient points to qualify for retired pay at age 60.

9.  On 27 March 2010, the applicant submitted a rebuttal to the USARC advisory opinion.  He stated that had he received OER's as a captain, he may have been promoted to major "on the first look" and may have had adequate time to be considered for promotion to lieutenant colonel and forestall his MRD.  He stated he completed the IN CCC and airborne school at Fort Benning, Georgia; received an above-center-of-mass OER for his service as the G-1 of the 100th Division, and he then volunteered for a CA assignment to Afghanistan after completing the CA course.  He states he enjoys the USAR and his role as a CA officer and finds the work rewarding.  He claims his civilian employer is supportive of his USAR membership and his believes his qualifications bring a unique skill set to his role as a CA officer.  He claims the CA branch is under-strength and can benefit from Soldiers who are willing to deploy.  He states he is in excellent physical condition and believes he can serve in his current role and be of great service to his country for at least an additional 5 years.  He requests his MRD be extended to 2016, for which the Army would gain much and lose little.  He claims he would willingly surrender the amount of "5 lost years" in order to continue to serve in this capacity.

10.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 contains the policy for removal from active status.  Paragraph 7-2 contains guidance on removal for length of service (removal rule 1).  It states commissioned officers in the rank of first lieutenant, captain, major, or lieutenant colonel will be removed on the earlier of the following dates:

	a.  they complete 28 years of commissioned service if under age 25 at initial appointment or

	b.  their 53rd birthday if age 25 or older at initial appointment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his MRD be extended has been carefully considered.  However, by regulation, officers in the grade first lieutenant, captain, major, and lieutenant colonel will be removed on their 53rd birthday if age 25 of older at initial appointment.

2.  The evidence of record confirms the applicant was made whole as a result of previous actions by this Board and that he was appropriately reinstated in the active USAR and promoted to captain and major.  As a result, absent a USARC recommendation for approval of the applicant's request based on the needs of the USAR, there is an insufficient evidentiary basis to support granting the requested relief.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100013334



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ABCMR Record of Proceedings (cont)                                         AR20100013334



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