IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20110014956 


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 voidance of his 23 December 2009 discharge from the Army National Guard (ARNG) and reinstatement in order to complete 20 years of qualifying service for retirement.

2.  The applicant states he was involuntarily separated due to errors in the calculation of his service that erroneously showed he had 17 years when in fact he had completed 18 years that should have resulted in his retention until completing 20 years of service under sanctuary provisions of the regulation.

3.  The applicant provides the following documents:

* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), dated 1 July 2010
* NGB Form 23A (ARNG Current Annual Statement), dated 8 July 2011
* NGB Form 23A1 (ARNG Retirement Points Statement Supplemental Detailed Report), dated 8 July 2011
* NGB Form 22 (Report of Separation and Record of Service) for the period ending 23 December 2009
* Orders 011-509, issued by the Puerto Rico National Guard Element, dated 11 January 2010


CONSIDERATION OF EVIDENCE:

1.  On 27 September 2001, after serving in an enlisted status, the applicant was appointed a second lieutenant (2LT) in the Puerto Rico ARNG.  On
28 September 2003, the applicant was promoted to first lieutenant (1LT).

2.  The applicant's record contains an NGB Form 23A, dated 15 May 2009, that shows the applicant completed 17 years of creditable service for retired pay and 2,377 total career points.  It shows that early in his career his retirement year was changed to end on 11 April.  It also shows that he was a regular participant in the ARNG, earning active duty and inactive duty points each retirement year.  

3.  Orders 011-509, dated 11 January 2010, directed the applicant's separation from the ARNG effective 23 December 2009 under the provisions of National Guard Regulation 635-100, paragraph 5a (10), Army Regulation 135-175, paragraph 4-4a(5).

4.  On 23 December 2009, the applicant was honorably separated from the ARNG.  The NGB Form 22 he was issued shows he completed 17 years of total service for retired pay and that he was separated under the provisions of National Guard Regulation 135-100, paragraph 5a(10), by reason of failure of a first lieutenant, captain, or major to be selected for promotion to the next higher grade after second consideration.

5.  In connection with the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB), Chief, Personnel Policy Division.  The advisory official recommends approval of the applicant's request.  He states the applicant was separated as a result of a second nonselection for promotion based on his record showing completion of 17 years of qualifying service for retirement.  He claims that at some point the Puerto Rico ARNG G-1 reviewed the applicant's record and corrected the errors discovered which resulted in the applicant having 18 years of qualifying service for retirement.  Based on this correction, the applicant was erroneously discharged on
23 December 2009.  He states the applicant has expressed his willingness to return to complete 20 years of qualifying service to the State.  He indicates that under the governing regulation, members completing 18 but fewer than 20 years of qualifying service for retired pay will not be involuntarily separated without the consent of the Secretary of the Army.  He concludes by stating the State supports the approval recommendation.

6.  On 20 June 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.
7.  The applicant provides an NGB Form 23A, dated 8 July 2011, that shows as of 23 December 2009, he completed 18 years of creditable service for retired pay and he had accrued 2,423 total career points.

8.  Army Regulation 135-175 (Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the
Army.  Paragraph 4-4 contains guidance on removal from an active status and states that an officer in the rank of first lieutenant, captain or major will be discharged for failure to be selected for promotion after second consideration.

9.  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 Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).
Paragraph 4-43 outlines actions resulting from nonselection.  It states that a first lieutenant on the Reserve Active Status List (RASL) who has failed of selection for promotion to captain a second time and whose name is not on a list of officers recommended for promotion to captain will be removed from active status not later than the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time unless the officer can be credited with 18 years or more but less than 20 years of qualifying service for retired pay.

10.  Title 10, U.S. Code, section 12646 (Commissioned officers retention of after completing 18 or more but less than 20 years of service) contains the legal authority to retain officers who have completed 18 or more but less than 20 years of service on the date prescribed for the discharge or transfer from an active status.  It states if on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he/she is entitled to be credited with at least 18, but less than 19, years of service, he/she may not be discharged or transferred from an active status without his/her consent before the earlier of the following dates:

	a.  the date on which he/she is entitled to be credited with 20 years of service

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


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request has been carefully considered and found to have merit.  The evidence of record confirms the applicant had actually completed
18 years of qualifying service for retirement on the date prescribed for his separation, as confirmed by the NGB advisory opinion and the applicant's
NGB Form 23A, dated 8 July 2011.  Therefore, he should not have been involuntarily separated without his consent.

2.  In view of the foregoing, it would be appropriate to void the applicant's 
23 December 2009 separation from the ARNG and to correct his record to show he was retained in an active status until the date on which he is entitled to be credited with 20 years of service, on retirement year ending 11 April 2011.

3.  In addition, based upon his ARNG participation history, it would also be appropriate to award him retirement points (15 membership, 15 active duty, and 20 inactive duty) for each of those additional retirement years.  

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding his 23 December 2009 separation from the ARNG and showing he was retained until retirement year ending 11 April 2011;

	b.  showing he earned 15 membership points, 15 active duty points, and 20 inactive duty points during retirement years ending 11 April 2010 and 11 April 2011 and paying him for these active duty and inactive duty points; and

	c.  showing he was honorably separated from the ARNG effective 11 April 2011 and transferred to the Retired Reserve with issuance of a notification of eligibility for retired pay at age 60.



      __________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)                                         AR20110014956



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ABCMR Record of Proceedings (cont)                                         AR20110014956



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