IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100017723


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 his previous request for a 20-year Regular Army (RA) retirement.

2.  The applicant states he is a Vietnam veteran and was honorably discharged on 31 December 1994 "just shy of 20 years of active military duty."  In October 1998, he requested full military retirement from the Army Board for Correction of Military Records (ABCMR), but the Board said he did not qualify.  As he approached his 60th birthday in 2008, he requested an audit of his military records and found he had significantly more active duty time than the ABCMR had found in 1998.

3.  The applicant further states on 15 October 2009 he received a letter from the Chief, Adjutant General Directorate, West, US Army Human Resources Command (HRC), St. Louis, MO, which states the applicant was within "two years of Active Duty retirement...[when] he was transferred to the retired reserves.  He should have been allowed to stay to complete 20 years for an Active Duty retirement…according to Title 10, United States Code, Chapter 1219, Section 12646."

4.  The applicant provides:

* congressional correspondence
* a consent form
* an email from a US Senator to the Army Review Boards Agency
* a copy of the HRC-St. Louis letter, dated 15 October 2009
* a copy of ARPC Form 249-E (Chronological Statement of Retirement Points)
* a copy of ABCMR letter, dated 17 June 2010, denying reconsideration of ABCMR Docket Number AC98-08504
* a copy of the cover memorandum and first page of ABCMR Docket Number AC98-08504
* a copy of his DD Form 149 (Application for Correction of Military Record), dated 12 November 2009, with attachments

CONSIDERATION OF EVIDENCE:

1.  The ABCMR previously considered  and denied the applicant’s request for a 20-year RA retirement in ABCMR Docket Number AC98-08504, dated 7 October 1998.  The applicant requested reconsideration of the 1998 decision on 2 November 2009.  That request was closed without action by letter dated 17 June 2010 because it was not received within 1 year of the original case.  The original Record of Proceedings in ABCMR Docket Number AC98-08504 is not available; therefore, this case is being reconsidered “de novo.”

2.  The 15 October 2009 letter from the Chief, Adjutant General Directorate, West, HRC–St. Louis was new evidence unseen by the ABCMR in its original review of the applicant's case in 1998.  As such, it requires review.

3.  The applicant was born on 16 August 1948.  With prior active service of 1 year, 8 months and 18 days in the US Naval Reserve (USNR), he enlisted in the Army National Guard (ARNG) on 4 February 1972; he had short periods of active duty while in the ARNG.  On 9 January 1975, he enlisted in the RA and served through 1 March 1978 when he was honorably discharged to accept a warrant.  He served a total of 3 years, 1 month, and 23 days on his RA enlistment and a grand total of 5 years, 2 months, and 1 day of total active service when USNR and ARNG active service were included.  On 2 March 1978, he was appointed as a warrant officer.  

4.  The applicant was promoted through the ranks to Chief Warrant Officer Three (CW3) on 1 June 1985.  He failed to make promotion to CW4 and was forced to leave active duty on 19 January 1990.  His DD Form 214 for the period shows 11 years, 10 months, and 18 days of active service as a warrant officer and only 4 years, 10 months, and 11 days of prior active service for a total of 16 years, 8 months, and 29 days.  Had the 5 years, 2 months, and 1 day of total active service been added to his warrant officer active service, he would have had 17 years and 19 days.

5.  The applicant served in the USAR from 20 January 1990 to his ultimate transfer to the Retired Reserve on 16 September 1996.  During his USAR service, he was periodically called to active duty, but only for the purposes of active duty for training (ADT) and active duty for special work (ADSW).  His last period of ADSW was from 9 May 1994 through 31 December 1994.

6.  The applicant provided a letter from the Chief, Adjutant General Directorate, West, HRC–St. Louis to his United States Senator.  The letter stated:

After reviewing [applicant's] Chronological Statement of Retirement points, it does show that he completed over 19 years of Active Duty before he was transferred to the retired reserves.  He should have been allowed to stay to complete 20 years for an Active Duty retirement as he previously stated according to Title 10, United States Code, Chapter 1219, Section 12646.

7.  Army Regulation 135-200 (Active Duty for Training, Annual Training, and Active Duty for Special Work of Individual Soldiers), the version in effect at the time, prescribed policies and procedures for ordering Reserve Component Soldiers to annual training (AT), ADT, initial active duty for training (IADT), and ADSW.  Paragraph 1-11 stated ADT, IADT, and ADSW orders would clearly cite 10 US Code §672(d) as the authority for ordering a Soldier to active duty.  (The current version of the regulation states §12301(d) will be cited.)  Paragraph 1-11a(10)(a) stated tours governed by this regulation are typically of short duration. Orders which place a Soldier on active duty specify that release will occur at the end of the tour, and the "sanctuary" provisions of 10 USC §12686 would not apply to Soldiers who came within 2 years of retirement eligibility during a period of ADT, IADT, or ADSW.

8.  Army Regulation 135-200, paragraph 6-6b of the regulation in effect at the time (and of the regulation currently in effect) stated that applicants for ADSW tours must submit DA Forms 1058-R.  Paragraph 6-6c of the regulation in effect at the time (and of the regulation currently in effect) stated a Soldier applying for ADSW who was or would be within 2 years of qualifying for an active Federal service retirement would enter the following in the remarks section of the DA Form 1058-R:

I understand that, although at the completion of my tour I may be within 2 years of qualifying for an active duty retirement under 10 USC 1293, 3911, or 3914, it is current Army policy that I will be released from active duty at the completion of my tour unless my continued retention on active duty is considered in the best 
interests of the Army by the Assistant Secretary of the Army (Manpower and Reserve Affairs).  I hereby consent to being ordered to active duty for the period indicated and consent to my release from active duty at the completion of this tour.

9.  The current version of the DA Form 1058-R is dated July 1993.  The required statement is pre-printed in item 24 (Remarks).

10.  Army Regulation 640-10 (Individual Military Personnel Records), in effect at the time, assigned responsibilities for maintaining and controlling the Official Military Personnel File (OMPF), the Military Personnel Records Jacket (MPRJ), and the Career Management Individual File (CMIF).  The regulation provided that the DA Form 1058-R was to be filed only in the USAR CMIF.  It was to be maintained for a period of two years from training date upon publication of orders, or, if training was disapproved, maintained for one year.  The form is not required to be maintained in the OMPF or the MPRJ.

11.  Title 10 USC §12646 (Commissioned officers: retention of after completing 18 or more, but less than 20, years of service) provides:

* 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 this title, 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:

o the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; or

o the third anniversary of the date on which he would otherwise be discharged or transferred from an active status

* 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 19, but less than 20, years of service computed under section 12732 of this title, 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:

o the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; or

o the second anniversary of the date on which he would otherwise be discharged or transferred from an active status

12.  Title 10 USC §12686 (Reserves on active duty within two years of retirement eligibility: limitation on release from active duty) provides:

* a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 (physical disability) of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.

* with respect to a member of a reserve component who is to be ordered to active duty (other than for training) under section 12301 of this title pursuant to an order to active duty that specifies a period of less than 180 days and who (but for this subsection) would be covered by subsection (a), the Secretary concerned may require, as a condition of such order to active duty, that the member waive the applicability of subsection (a) to the member for the period of active duty covered by that order. In carrying out this subsection, the Secretary concerned may require that a waiver under the preceding sentence be executed before the period of active duty begins.

13.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a 20-year regular retirement.  He provides an HRC-St. Louis letter, dated 15 October 2009, to his United States Senator which states, "…he completed over 19 years of Active Duty before he was transferred to the retired reserves.  He should have been granted sanctuary to stay to complete 20 years for an Active Duty retirement as he previously stated according to Title 10, United States Code, Chapter 1219, Section 12646."

2.  The applicant was an active duty CW3 who was forced to separate for failure to be promoted to CW4.  When he left active duty on 19 January 1990, he had a total of 17 years and 19 days of active Federal service; he did not qualify for sanctuary to complete 20 years.

3.  As a USAR warrant officer, the applicant periodically returned to active duty to perform various training and/or special work.  These various snippets of active duty time pushed his total active service beyond 19 years; however, none of these periods of active duty qualified him for retention under sanctuary provisions per Army Regulation 135-200.

4.  Per Army Regulation 135-200, the applicant would have completed a DA Form 1058-R each time he returned to active duty acknowledging that the active duty service would not qualify him for a 20-year retirement.  These forms would have been maintained in his CMIF for a period of 2 years from the training date upon publication of orders.  He does not allege that he did not sign a DA Form 1058-R or, if he did, that it did not contain the waiver language.  The available record contains no other errors suggesting Army officials misunderstood or misapplied governing regulations or cited the wrong statutory provisions on orders in granting the applicant's ADSW.  The applicant provides no evidence to show the Assistant Secretary of the Army approved his retention on active duty under sanctuary.

5.  The 15 October 2009 letter from HRC-St. Louis to the applicant's US Senator was incorrect.  The letter cited 10 USC §12646, sanctuary for Reserve retirement, as the authority for the applicant's justification to qualify for a 20-year retirement.  The applicant already qualified for a reserve retirement.  However, Army Regulation 135-200 specifically provides the Regular Retirement "sanctuary" provisions of 10 USC §12686 would not apply to Soldiers who came within 2 years of retirement eligibility during a period of ADT, IADT, or ADSW.

6.  The applicant's delay (15 years in the applicant's current case and 3 years in his original case) in filing his request for correction of his records prevents the Army from obtaining the one piece of evidence -- his DA Form 1058-R -- which would conclusively prove or disprove his eligibility for sanctuary.  An arbitrary ruling in his favor, without knowing what the DA Form 1058-R would have shown, would cause prejudice to the Government.  

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 corrections 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)                                         AR20100017723





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ABCMR Record of Proceedings (cont)                                         AR20100017723



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