BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20110006343 


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:

* adjustment of his mandatory removal date (MRD), from 31 August 2016 to 30 November 2019
* adjustment of his date of rank (DOR), from 17 December 2000 to 31 March 2004

2.  The applicant states, in effect:

   a. he was reappointed and promoted in accordance with the provisions of the Wxxxxx lawsuit (Settlement Agreement, Lxxxx J. Wxxxxx vs. Fxxxxxx J. Hxxxxx, in his official capacity as Secretary of the Army, U.S. District Court for the Western District of Oklahoma);

   b. the prescribed DOR adjustment has put him at a competitive disadvantage against his peers;

   c. there are no provisions for adjusting a Soldier's MRD to remove enlisted time from the prescribed years of commissioned service; and

   d. without the requested adjustment to his MRD and DOR, he will reach his MRD prior to obtaining 20 years of active federal service, for which he would qualify for a regular retirement.


3.   The applicant provides:

* a self-authored memorandum, dated 1 June 2010
* memorandum, Joint Force Headquarters Wisconsin, dated 18 June 2010
* National Guard Bureau (NGB) Policy Memorandum 06-086, dated            4 January 2007
* DA Form 2-1 (Personnel Qualification Record – Part II) (4 pages)
* Army National Guard Current Annual Statement of Retirement Points, dated 9 March 2011
* DD Forms 214 (Certificate of Release or Discharge from Active Duty), for the periods ending 25 April 1986, 16 March 1990, 20 April 1994, 6 June 2004, 8 November 2005, and 9 February 2010
* NGB Forms 337 (Oaths of Office), dated 14 August 1988 and 17 January 2001
* DA Forms 71 (Oath of Office – Military Personnel), dated 22 February 1989 and 17 January 2001
* Special Orders Number 85 AR, dated 27 March 2001
* NGB Forms 22 (Report of Separation and Record of Service), for the period ending 18 January 2001 and 22 October 2007
* memorandum, U.S. Army Human Resources Command (HRC), dated    12 May 2006
* Special Orders Number 286 AR, dated 20 November 2007
* Special Orders Number 209 AR, dated 12 August 2008
* Special Orders Number 79 AR, dated 26 April 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a major (MAJ) in the Wisconsin Army National Guard (WIARNG).

2.  On 14 August 1988, after prior enlisted service, he was appointed as a commissioned officer in the WIARNG, in the grade of second lieutenant.  On     13 August 1991, he was promoted to first lieutenant, and on 18 December 1993, he was promoted to captain (CPT).

3.  On 10 August 2000, he was notified of his consideration and non-selection for promotion to MAJ by the Fiscal Year (FY) 2000 Department of the Army Reserve Component (RC) MAJ Army Promotion List (APL) Mandatory Selection Board that convened on 7 March 2000.    

4.  On 18 January 2001, he resigned his commission and was honorably discharged from the WIARNG.

5.  On 19 January 2001, he enlisted in the WIARNG, in the rank/pay grade of sergeant/E-5.

6.  On 4 November 2005, subsequent to a settlement agreement reached in Lxxxx J. Wxxxxx vs. Fxxxxxx J. Hxxxxx, he was considered and selected for promotion to MAJ by a DA Special Selection Board (SSB), convened to reconsider for promotion officers who may have been improperly nonselected for promotion based on incorrect guidance concerning the military education requirement for promotion to MAJ.  

7.  On 16 October 2007, his records were reviewed by a Federal Recognition Examining Board, to determine his qualifications for federal recognition as a CPT in the WIARNG.  The board found him qualified and recommended he be granted Federal recognition.  The board also noted he was being reappointed effective   17 January 2001, in accordance with NGB Memo 06-086 (Guidance on Settlement of the Wxxxxx Class Action Lawsuit), dated 4 January 2007, and that his DOR as a CPT was 18 December 1993. 

8.  On 22 October 2007, he was honorably discharged from the WIARNG, in the rank/pay grade of sergeant first class/E-7, for the purpose of appointment as a commissioned or warrant officer.  His NGB Form 22 shows he completed 6 years, 9 months, and 4 days of creditable enlisted service during this period of enlistment.

9.  On 6 November 2007, he was reappointed as a commissioned officer in the WIARNG, in the grade of CPT, effective 17 January 2001.  Special Orders Number 286 AR and 79 AR, NGB, dated 20 November 2007 and 26 April 2010, respectively, extended him Federal recognition as a CPT effective 17 January 2001.

10.  On 11 August 2008, he was promoted to MAJ.  His Promotion Eligibility Date (PED) [essentially, his DOR] was determined to be 17 December 2000, seven years after his effective date of promotion to CPT.  

11.  Special Orders Number 209 AR, NGB, dated 12 August 2008, extended him Federal recognition as a MAJ effective 11 August 2001.  The document also shows his PED date as 17 December 2000.  

12.  He was considered and selected for promotion to LTC by the FY 2009 DA RC LTC APL Selection Board that convened on 8 September 2009.  The official release date of this board was 21 January 2010.  His records are void of any documentation concerning his promotion to LTC, or any Federal recognition accompanying this promotion.
13.  He will reach age 60 on 27 April 2025.

14.  The Soldier Management System, located on the HRC Integrated Web Service database, shows his MRD is 31 August 2016.

15.  In connection with the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended partial approval of his request for an adjustment of his MRD and DOR to MAJ.  The official stated:

   a. In accordance with NGB Memo 06-086, the applicant's DOR should be adjusted, or he should be appointed in his previous commissioned status, with an effective date before being reverted to enlisted status.  The applicant reverted to enlisted status on 19 January 2001; therefore, his DOR should be 18 January 2001.  

   b. The applicant's current MRD is 31 August 2016.  Based on a review of his current retirement points statement, he has a total of 6 years, 9 months, and       3 days as an enlisted Soldier.  After excluding his enlisted time from his MRD computation, his new MRD should be adjusted to 31 August 2023.

16.  A copy of the NGB advisory opinion was forwarded to the applicant for information and rebuttal.  No response was received.

17.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers (WO) of the USAR.  Chapter 2 contains guidance on promotion eligibility and qualification requirements.  Chapter 4 contains guidance on processing selection board recommendations.

   a. Table 2-1 lists the time-in-grade (TIG) requirements for commissioned officers, other than warrant officers.  It states that the maximum number of years a MAJ serves prior to mandatory promotion consideration to LTC is normally       7 years.

   b. Paragraph 4-17 provides guidance on PEDs and DORs.  It states, in pertinent part, that the PED is the date an officer meets the eligibility criteria for promotion to the next higher grade, and the DOR is the date the officer actually or constructively was appointed or promoted to a specific grade.  It is the date used to determine the relative seniority for officers holding the same grade.

18.  Title 10, United States Code, Section 14507 (10 USC 14507) provides the legal authority for the removal from the Reserve Active Status List (RASL) for years of service.  It states, in pertinent part, that officers in the grade of lieutenant colonel, who are not on a list of officers recommended for promotion to the next higher grade, shall be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his MRD should be adjusted from 31 August 2016 to 30 November 2019.  By law, commissioned officers in the rank of LTC, who are not on a list of officers recommended for promotion to the next higher grade, are removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service.  His commissioning date is 14 August 1988 and his MRD, as an LTC, is 31 August 2016.  

2.  The applicant was retroactively appointed to CPT and promoted to MAJ, and presumably received back pay as a MAJ for the years of his enlisted service after his reappointment and promotion.  This action made him whole, and in essence, erased his enlisted service.  He would be in the same position today, relative to his MRD, had the Army selected him for promotion to MAJ in 2000.

3.  The applicant had approximately 12 years of reserve service in the WIARNG before he resigned his commission and began serving, in a full-time status, as an enlisted Soldier.  His MRD problem stems from having too many years of commissioned service, not on active duty, prior to entering active duty as an enlisted Soldier.  The applicant made the choice, prior to 2000, to serve in the WIARNG in a part-time capacity.  Adjusting his MRD would provide him a benefit not available to other officers with extensive reserve service that prevents them from earning a regular retirement prior to reaching their MRD.  

4.  The applicant contends his DOR should be adjusted from 17 December 2000 to 31 March 2004.  He further contends that his DOR adjustment, prescribed by the settlement agreement in Lxxxx J. Wxxxxx vs. Fxxxxxx J. Hxxxxx, has put him at a competitive disadvantage against his peers.  The evidence of record shows he was selected by the FY 2009 DA RC LTC APL Promotion board, thereby eliminating any possible disadvantage he may have suffered.  Furthermore, adjustment of his DOR to the requested date would invalidate his selection by the FY2009 DA RC LTC APL Promotion board.  

5.  In view of the foregoing, there is no basis for granting relief in this case.


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)                                         AR20100000119



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ABCMR Record of Proceedings (cont)                                         AR20110006343



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