IN THE CASE OF:	  

		BOARD DATE:	    15 November 2011

		DOCKET NUMBER:  AR20110005403 


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, correction of his records to show:

* he did not have an 84-day break in service
* he was issued active duty orders for the period 2 June through 24 August 2008
* he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 2 June through 24 August 2008 with his correct periods of active duty and total service time
* his records were updated to show 30 years of total time in service for pay purposes and 20 years, 5 months, and 23 days of active duty service
* he was issued amended retirement orders reflecting 30 years and 3 days of total time in service and 20 years, 5 months, and 23 days of active duty service
* active duty and retirement payments for the adjusted service time
* his toe injury was in the line of duty and documented on his DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) or Standard Form 600 (Chronological Record of Medical Care)

2.  The applicant states:

* he was accepted into the sanctuary program on 23 April 2008 under the provisions of Title 10, U.S. Code (USC), section 12686a, while serving on active duty for operational support (ADOS) orders in support of Operation Enduring Freedom
* he was involuntarily released from active duty (REFRAD) on 1 June 2008 while in sanctuary
* his REFRAD was a violation of law resulting in an improper and unauthorized 84-day break in service for the period 2 June through 24 August 2008
* he was issued a DD Form 214 with an effective date of 1 June 2008 with 18 years, 1 month, and 29 days of active Federal service
* he was not assigned to his sanctuary tour until 25 August 2008
* he lost approximately $30,867 in pay and benefits in 2008, causing a family hardship and depleting his savings 
* he should have credit for 20 years, 5 months, and 23 days of active service and his retirement credit should be 30 years and 3 days
* his retirement pay is based on 29 years of service and with a loss of $100 monthly
* he may be owed an increase in some portion of his active duty pay for the increased service time
* he fractured his toe during the 84-day period and a line-of-duty determination ruled that it was not in the line of duty since he was not on active duty at the time of the injury

* this injury will result in arthritis and should be included as a service- connected injury for future Department of Veterans Affairs (VA) coverage

* there is no evidence in his records that his involuntary REFRAD was recommended by the Commander, U.S. Army Human Resources Command (HRC), and approved by the Secretary or his designee
* his REFRAD occurred due to an internal HRC policy

* the Senior Leadership Branch was required to assign him to an active duty colonel/O-6 position using the nominative assignments process which took 124 days to produce an assignment 
* the improper application of the HRC policy that resulted in the failure to comply with the provisions of Title 10, USC, section 12686(a), and governing Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA M&RA) policy is an injustice
* the improper application of policy caused him to lose active duty medical line-of-duty protections

* HRC had the authority to assign him to a position prior to his REFRAD and he could have been assigned to the U.S. Special Operations Command
* governing policy states that "an HRC recommendation for REFRAD must be signed by the commander and will be forwarded through the Army G-1 (DAPE-MP) to the ASA M&RA for final approval/disapproval"
* the Department of the Army (DA) Personnel Policy Guidance (PPG) for Contingency Operations in Support of Global War on Terrorism (GWOT), paragraph 10-22 (Sanctuary/18-year Lock-in), supports his claim

3.  The applicant provides:

* self-authored statements
* DD Form 214
* HRC sanctuary eligibility status letter, dated 23 April 2008
* service time summary printouts
* extract of Title 10, USC, chapter 1221, section 12686,
* ASA M&RA letter, dated 11 August 2008, subject:  Management of Reserve Component (RC) Soldiers Retained on Active Duty for Sanctuary
* extract of the DA PPG for Contingency Operations in Support of GWOT, dated 13 February 2008
* retirement orders
* active duty orders
* extract of Title 10, USC, chapter 1209, section 12301

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired U.S. Army Reserve (USAR) colonel with a retirement effective date of 1 October 2010.

2.  His retirement orders show he was credited with 29 years, 9 months, and 9 days of service for pay purposes and he completed 20 years, 2 months, and 29 days of total active duty service.

3.  While the applicant was serving on ADOS on 23 April 2008, his command was notified by HRC that he had attained sanctuary eligibility status.  The notification stated, "As of 29 June 2008, the applicant would have 18 years, 2 months, and 27 days of active Federal service.  Soldier is required to take 14 to 20 days of transitional leave before leaving mobilization status.  Contact our office once you report to the demobilization site."  

4.  The HRC notification continued, "Early demobilization may cause a Soldier to lose their [sic] eligibility status for sanctuary.  We will not be able to release the order until the DD Form 214 and REFRAD order is cut at the transition center and forwarded to this office."  Additionally, Soldiers are advised to submit their packet for sanctuary about 120 days prior to their demobilization date.  Once approved for sanctuary, Soldiers are eligible for world-wide assignment based on the needs of the Army.  Soldiers are advised that a break in service will occur if actions are not accomplished in a timely manner.

5.  The applicant's DD Form 214 for the period ending 1 June 2008 shows he was REFRAD and had over 18 years of active service at the time of his separation.

6.  Item 18 (Remarks) of the applicant's DD Form 214 for the period ending 1 June 2008 shows he served in Afghanistan during the period 22 July 2006 through 27 April 2008.

7.  The applicant did not provide a copy of his notice of sanctuary status or Sanctuary Notice Checklist to the Commander, HRC.

8.  There is no record of an HRC recommendation or ASA M&RA approval/
disapproval.

9.  On 25 August 2008, he was ordered to active duty for a period of 675 days with a projected end date of 30 June 2010 to obtain 20 years of active Federal service under the extended active duty sanctuary program.  

10.  His records contain a DD Form 214 showing he was released from active duty effective 21 September 2010.  He completed 2 years and 27 days of active service during this period.

11.  On 24 September 2010, he was reassigned to the USAR Control Group (Reinforcement) effective the same date.

12.  On 1 October 2010, the applicant was retired and placed on the Retired List in the rank of colonel.  He completed a total of 29 years, 9 months, and 9 days for basic pay purposes.  He was credited with 20 years, 2 months, and 29 days of total active duty service.  

13.  The applicant did not provide any documentation pertaining to his toe injury.  

14.  DA PPG for Contingency Operations in Support of GWOT, dated 13 February 2008, paragraph 10-22, states Soldiers eligible for retention on active duty pursuant to Title 10, USC, section 12686, at the end of such period of active duty must be voluntarily retained on active duty pursuant to Title 10, USC, section 12301(d), if they so choose.

15.  Title 10, USC, section 12686(a), states, under regulations to be prescribed by the Secretary concerned, a member of an RC who is on active duty (other than for training) and is within 2 years of becoming eligible for retired pay under a purely military retirement system may not be involuntarily REFRAD before he or she becomes eligible for that pay unless the release is approved by the Secretary.

16.  A memorandum from ASA M&RA, dated 11 August 2008, subject:  Management of RC Soldiers Retained on Active Duty for Sanctuary, states a Reserve Soldier on active duty who has attained 18 years or more (but less than 20 years) of active service must forward a notice of sanctuary status to the Commander, HRC, ATTN:  AHRC-PLM-O, through his or her chain of command.  The notice must include all the documents on the Sanctuary Notice Checklist to substantiate the Soldier's eligibility for sanctuary.  The notice must be received by HRC 120 days prior to the end date of the Soldier's orders.  When the Commander, HRC, does not support the Soldier's retention on active duty for sanctuary, the Soldier's notice must be forwarded to the Army G-1 with HRC justification for REFRAD.  An HRC recommendation for REFRAD must be signed by the commander and will be forwarded through the Army G-1 to the ASA M&RA for final approval/disapproval.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests were carefully considered.

2.  Although the applicant was REFRAD on 1 June 2008 with over 18 years of service, he has not provided sufficient evidence showing he submitted a packet for sanctuary prior to his separation date.  The sanctuary eligibility letter clearly states certain requirements must be completed or there is the risk of a break in service.  The 14 to 20 days of transitional leave is used to locate an assignment and publish permanent change of station orders.  

3.  It is true that Title 10, USC, section 12686(a), states a member of an RC who is on active duty and is within 2 years of becoming eligible for retired pay under a purely military retirement system may not be involuntarily REFRAD before he or she becomes eligible for that pay unless the release is approved by the Secretary.  However, it also states, “under regulations to be prescribed by the Secretary concerned.”  

4.  The Army’s regulatory guidance is the DA PPG, which states Soldiers eligible for retention on active duty pursuant to Title 10, USC, section 12686, at the end of such period of active duty must be voluntarily retained on active duty if they so choose.
5.  The applicant has not shown he accomplished those requirements to request retention on active duty in a timely fashion or that his break in service was the result of an administrative error by the Army.

6.  Records show the applicant was subsequently ordered to active duty after his REFRAD to obtain 20 years of active Federal service under the extended active duty sanctuary program and he was allowed to serve until he reached retirement eligibility.  Therefore, the presumption of regularity exists and the applicant has not shown an error or injustice to the satisfaction of the Board.

7.  Although the applicant desires to have his fractured toe injury found to be in the line of duty for future VA claims, the accident occurred while he was not on active duty.

8.  There is no evidence in the available record and the applicant did not provide any evidence which shows his REFRAD, break in service, and ultimate retirement was in error or unjust.  Absent such evidence, there is no basis for granting the applicant's request.

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 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)                                         AR20110005403



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ABCMR Record of Proceedings (cont)                                         AR20110005403



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