IN THE CASE OF:
BOARD DATE: 29 May 2012
DOCKET NUMBER: AR20110018814
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 advancement of his U.S. Army Reserve (USAR) mandatory removal date (MRD).
2. The applicant states his MRD should be adjusted from May 2012 to reflect the time between his separation from the USAR and his reinstatement as a major. If this is done he will probably be able to serve for several more years. He believes his present MRD is simply an error or an administrative oversight because it indicates he was never separated. He can find no legal or regulatory requirement that "his years of commissioned service stand as if he was never separated."
3. The applicant provides copies of a Total Army Personnel Command, St. Louis, MO, letter, dated 6 June 1977, notifying him of his second non-selection; and a State of Ohio Adjutant General letter, dated 9 December 1998, discharging him effective 1 March 1999.
CONSIDERATION OF EVIDENCE:
1. The applicant is now a USAR lieutenant colonel with an MRD of 14 May 2012. On 13 May 1984, he accepted an appointment as a second lieutenant in the USAR and the Ohio Army National Guard.
2. He was discharged on 16 October 1998 based on being twice non-selected for promotion to major.
3. After a 4-year break in service, he enlisted in the USAR as a sergeant on 28 October 2002.
4. On 25 November 2002, a special selection board selected him for promotion to major under the 1998 criteria and established his date of rank as 31 August 1998.
5. In Docket Number AR2003090973, dated 29 July 2003, this Board voided the applicant's discharge and his enlistment. His previous USAR commissioned status was restored and he was promoted with a date of rank of 31 August 1998 and an effective date of 25 November 2002. His pay was recalculated to compensate him for the difference between what he received as a sergeant and what he would have received as a major. Subsequently, he was promoted to lieutenant colonel/pay grade O-5 with a date of rank of 16 December 2008.
6. In an advisory opinion, Headquarters, USAR Command, recommended the applicant's request be denied because the applicant did not experience any break in service due to the Board's actions.
7. The advisory opinion was referred to the applicant for concurrence, rebuttal, or comment. He did not respond within the allotted time.
8. Title 10, U.S. Code, states in:
a. section 1370(d)(3)(A) that unless entitled to a higher grade under some other provision of law, an officer in a grade above major must have served satisfactorily in that grade for not less than 3 years. Section 1370(d)(3)(B)(1) states a person who has completed at least 6 months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete 3 years of service in that grade, if that person is transferred from an active status solely due to the requirements of a nondiscretionary provision of law requiring that transfer due to the person's age or years of service.
b. section 14507(a) that unless continued on the Reserve Active Status List under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each Reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the Reserve Active Status List) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.
DISCUSSION AND CONCLUSIONS:
1. As a result of being selected for promotion by the SSB and the action of this Board, the break in service was voided and there was no loss of his total number of commissioned service years.
2. Because of the provisions of Title 10, U.S. Code, section 1370(d)(3)(B)(1), it appears he will need to have completed only 6 months of satisfactory service in pay grade O-5 to be credited with satisfactory service in that grade for retirement. Because of his MRD, his transfer from an active status will be solely due to the requirements of a nondiscretionary provision of law requiring that transfer due to his years of service.
3. Additionally, section 14507(a) requires that he be separated upon completion of 28 years of commissioned service.
5. In view of the above, the applicant's 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 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) AR20110018814
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ABCMR Record of Proceedings (cont) AR20110018814
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