IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110005637 


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 the Vice Chief of Staff of the Army, to be granted sanctuary based on 18 years and 6 months of honorable service.

2.  The applicant states, in effect, in 2008 the Army Board for Correction of Military Records (ABCMR) disapproved a petition to award him back pay and allowances because of a clear legal error.  Eight years ago, he was separated from active duty in violation of the governing provisions of law and all of his attempts to correct the record have been unsuccessful.  He strongly believes that he is eligible for and entitled to sanctuary in accordance with the law.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 1 April 1999
* DD Form 214, effective 27 September 2003
* Headquarters, Fort McPherson, Orders Number 267-0104, dated 
24 September 2003
* Headquarters, 81st Regional Support Command, Orders Number 
10-215-00044, dated 3 August 2010
* ARPC Form 249-E (Chronological Statement of Retirement Points), dated 16 March 2011
* Copies of U.S. Code, Title 10, sections 12646(a) and 12686(a)



CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a lieutenant colonel (LTC/O-5) in the United States Army Reserve (USAR).

2.  The applicant's record shows he completed two periods of active duty service for a cumulative total of 16 Years, 5 months, and 28 days from:

* 24 July 1979 to 23 October 1983 (12 years, 2 months, and 28 days)
* 4 January 1987 to 1 April 1999 (4 years and 3 months)

3.  On 28 September 2001, he was called to active duty in support of Operation Noble Eagle.

4.  On an unknown date, the applicant applied for and was accepted to the USAR Active Guard Reserve (AGR) program.  On 21 May 2003, the Commander, Headquarters, U.S. Army Forces Command, directed the applicant be released from active duty in order to be accessed into the AGR program no later than 
2 August 2003.  The applicant faxed this same memorandum and a hand written note summarizing the telephone conversation between himself and a representative from USAR Personnel Command.  The note details tasks he needed to complete and documents required to facilitate his transition into the AGR program.
   
5.  On 14 July 2003, his commander recommended approval of the applicant's request to be released from active duty in order to report to active duty under the AGR program.

6.  A review of his official military personnel file (OMPF) and previous applications submitted to this board show the applicant was assigned to the USAR Command, St. Louis, MO, and further attached to the USAR Command, 
B Company, U.S. Army Garrison, in an AGR status with a report date of 
13 August 2003.

7.  On 14 August 2003, the applicant was found to be HIV positive and on
15 August 2003, he was processed for separation in accordance with Army Regulation 600-110 (Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV).  The unexecuted portion of his AGR orders were revoked on the same day and he was released from the AGR program.


8.  He was honorably released from active duty on 27 September 2003 for the narrative reason "Completion of Required Service" and transferred to a USAR unit.  His DD Form 214 issued for this period shows he completed 2 years of active service for the period.  Combined with his prior active service, he had a cumulative total of 18 years, 5 months, and 28 days of total active duty service upon his release from active duty.

9.  The applicant applied for correction of his record on two previous occasions:

   a.  On 12 November 2008, the ABCMR denied the applicant's petition to correct his records to show he was returned to active duty in the U.S. Army, effective 28 September 2003; payment of all back pay and allowances due as a result of reinstatement on active duty; that he was retired from active duty on
30 April 2005 and place on the retired list, in the grade LTC, effective 1 May 2005; and payment of all retired back pay and allowances due as a result of the correction.  The board found the available evidence failed to support the applicant's claim that he was improperly discharged or transferred from an active status in the USAR or that he was involuntarily released from active duty; and

   b.  On 25 March 2010, the ABCMR denied the applicant's request for reinstatement on active duty in the USAR AGR program.  The board found that there was not clear and convincing evidence and/or argument that he was entitled to be reinstated on AD in the USAR AGR program.

10.  In order to preclude involuntary separation, 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, U.S. Army HRC (AHRC-PLM-O), 9700 Page Avenue, St. Louis, MO 63125-1547 through his or her chain of command.  The notice must include all the documents on the Sanctuary Notice Checklist in order for HRC to substantiate that the Soldier is eligible 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 (DAPE-MP) to the ASA (M&RA) for final approval/disapproval.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, through the Vice Chief of Staff of the Army, to be granted sanctuary based on 18 years and 6 months of honorable service.

2.  Statue provides that 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 under a purely military retirement system may not be involuntarily released from that duty before he becomes eligible for that pay unless the release is approved by the Secretary.  Sanctuary by definition offers refuge and protection from involuntary separation when close to retirement eligibility.

3.  There is no available evidence of record showing the applicant ever submitted a notice of sanctuary through his chain-of-command 120 days prior to his separation from active duty.

4.  The evidence of record shows the applicant applied for entry into the AGR program, was accepted, and voluntarily requested release from active duty in order to enter the program; therefore, he is not eligible for sanctuary.

5.  The circumstances leading to his subsequent release from the AGR program are unfortunate; but, they are a separate matter which was previously considered by the ABCMR in 2008 and 2010, and are not germane to his request for sanctuary.

6.  Based on the foregoing, his request should be denied.

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)                                         AR20110005637





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ABCMR Record of Proceedings (cont)                                         AR20110005637



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