IN THE CASE OF:	  

		BOARD DATE:	  12 December 2010

		DOCKET NUMBER:  AR20100029609 


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, through her Member of Congress, the removal of the inactive time from 7 March 1994 to 31 August 1999 from her records.

2.  The applicant states the removal would allow her to change her point credit summary and in effect allow the recalculation of her mandatory removal date (MRD).  As of 31 August 2008, she had completed 14 years, 8 months, and
15 days.  It is reasonable to presume she would have had 15 years, 8 months, and 15 days of satisfactory service by 31 August 2009.  She was commissioned as a Regular Army (RA) officer on 16 May 1987.  She was discharged on
20 February 1992 and transferred to the U.S. Army Reserve (USAR) Control Group.  Her service history reflects inactive service from 7 March 1994 to
31 August 1999.  However, her 8-year commitment ended on 15 May 1995.  She joined the Alaska Air National Guard on 15 September 1999 and she remained active in that component.  Her current calculation of the MRD is 1 January 2010, which is approximately 5 years short of the required 20 years for traditional retirement.

3.  The applicant provides various medical documents and correspondence related to her U.S. Air Force/Air National Guard service.

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 she was appointed as an Aviation second lieutenant in the USAR and she executed an oath of office on 16 May 1987.  She subsequently entered active duty on 1 September 1987, completed the Aviation Officer Basic Course, served in various staff or leadership positions, and attained the rank/grade of captain (CPT)/O-3.

3.  She was honorably released from active duty on 20 February 1992 under the Fiscal Year 1992 Voluntary Early Transition Program and she was transferred to the 166th Aviation Regiment, a troop program unit (TPU).

4.  On 31 October 1992, she was voluntarily reassigned to the 6th Battalion, 159th Aviation Regiment, Fort Benning, GA, another TPU.

5.  Her records show she had an extensive record of unexcused absence from her scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA).  The applicant's records further show that she was notified in writing, by certified mail, of her unexcused absence and that each notification letter advised her that if she accumulated nine unexcused absences within a one-year period, she could be declared an unsatisfactory participant and transferred to the Individual Ready Reserve (IRR) for the balance of her service obligation.

6.  On 9 November 1993, her immediate commander certified that she had been absent from a scheduled MUTA without proper authority and failed to provide a cogent reason of the absence.  During the period 11 September 1993 through 7 November 1993, she accumulated 12 unexcused absences.  Accordingly, her commander declared her an unsatisfactory participant and directed her transfer to the IRR.

7.  On 7 March 1994, Headquarters, 121st USAR Command, Birmingham, AL, published Orders 22-26 directing her reassignment from her TPU to the USAR Control Group (Reinforcement).

8.  Her current ARPC Form 249-E (Chronological Statement of Retirement Points) shows, during the period 7 March 1994 through 13 September 1999, she received membership points; however, she did not perform any active or inactive service.

9.  On 24 September 1998, she was notified that she had been considered for promotion to major (MAJ) by the March 1998 Reserve Components Selection Board (RCSB) but she was not selected.

10.  She provided a National Guard Bureau (NGB) Form 22 (Record of Service and Report of Separation) that shows she was appointed in the Alaska Air National Guard on 15 September 1999 and she was promoted to MAJ in the Air National Guard on 1 October 2001.  She was subsequently honorably discharged from the Air National Guard on 1 January 2010.  This form shows she completed 15 years, 8 months, and 15 days of total service for retired pay.

11.  She submitted correspondence, medical records, and other documents related to her U.S. Air Force/Air National Guard service.

12.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a one-year period.

13.  Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Paragraph 4-15 of this regulation provides for involuntary reassignment for unsatisfactory participation.  It states a TPU or IMA (Individual Mobilization Augmentee) Soldier who has completed initial entry training and been awarded a specialty and is not within 3 months of expiration of term of service or who fails to participate satisfactorily may be reassigned to the appropriate control group of the IRR.  Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings when determined to be in the best interest of the Army.

14.  Army Regulation 135-175 (Separation of Officers) provides for the separation of officers of the Army National Guard of the United States and the U.S. Army Reserve, except for officers serving on active duty or active duty for training exceeding 90 days.  Chapter 4 describes conditions under which USAR officers may be discharged from their status as Reserves of the Army and prescribes criteria for discharging them.  Paragraph 4-1(e) states a member of the USAR who has at least 3 years of service as a commissioned officer may not be discharged without his consent, except under an approved recommendation of a board of officers convened by an authority designated by the Secretary of the Army, by the approved sentence of a court-martial, or as otherwise specifically provided by law (Title 10, U.S. Code (USC), section 1163(a)).

15.  Title 10, USC, section 12203 (Commissioned Officers: Appointment, how made, term) states that appointments of Reserves in commissioned grades are for an indefinite term and are held during the pleasure of the President. 

DISCUSSION AND CONCLUSIONS:

1.  As a member of the USAR, the applicant was required to attend all UTA's and annual training periods.  The evidence of record, during the period 11 September 1993 through 7 November 1993, shows she did not do so.  She accumulated 12 unexcused absences and her commander declared her an unsatisfactory participant.  Accordingly, she was transferred to the IRR. 

2.  While in the IRR, between March 1994 and September 1999, she received membership points but she did not earn any qualifying years toward non-regular retirement during this period.

3.  Contrary to her argument that she was required to serve for only 8 years, by law, when the applicant was appointed as a commissioned officer, she was appointed for an indefinite period.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Since there is neither an error nor an injustice, there is insufficient evidence to grant her the requested relief.

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)                                         AR20100029609



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029609



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1