IN THE CASE OF:	  

		BOARD DATE:  21 June 2012

		DOCKET NUMBER:  AR20110023651 


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 reconsideration of his previous request to have his mandatory removal date (MRD) adjusted from March 2013 to March 2016.

2.  The applicant states his previous request was denied in 2010 because the Army Board for Correction of Military Records (ABCMR) said that in 2004, when the Board corrected his erroneous separation, he was made whole by the receipt of the difference in pay and entitlements between the ranks of major (MAJ) and sergeant (SGT).  He now provides a new argument as to why his MRD should be adjusted.

3.  The applicant provides ABCMR Docket Number AR20040002889 Record of Proceedings (ROP), dated 9 December 2004, and ABCMR Docket Number AR20100008775 ROP, dated 23 December 2010.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100008775, on 23 December 2010.

2.  As a new argument, the applicant states he agrees that he was made whole in 2004 as it relates to pay.  However, as it relates to officer career development and enhancement he disagrees.  The only true way to make him whole is to add the time [he lost], 3 years, 11 months, and 6 days, to his MRD to allow him to attend professional development courses that he is unable to attend due to his current MRD.  This would make him a competitive officer, give the Army a better trained officer, and correct a wrong.

3.  The applicant's records show he was born on 10 March 1956.  Having had prior enlisted service he was appointed as a U.S. Army Reserve (USAR) Adjutant General Corps second lieutenant on 15 January 1985 at age 28.  He was promoted to first lieutenant (1LT) on 14 January 1988 and captain (CPT) on 13 January 1993.  

4.  He was considered but not selected for promotion to MAJ by the 1999 and 2000 Reserve Components Selection Boards (RCSB).  He was honorably discharged on 1 February 2001 due to non-selection for promotion.

5.  On 26 August 2002, he enlisted in the USAR in the rank of SGT.  On 17 September 2003, a Department of the Army (DA) Standby Advisory Board convened and recommended him for promotion to MAJ using the 2000 RCSB MAJ promotion criteria with a date of rank (DOR) of 19 July 2000.

6.  On 9 December 2004, the ABCMR in AR20040001879 voided his USAR enlistment, reinstated him to his previous Reserve commissioned officer status, and promoted him to MAJ based on a DA Standby Advisory Board.  In addition, the ABCMR directed that his pay during his USAR enlisted status be offset and payment of any difference he was due as a result of this action.  

7.  On 3 August 2006, he was notified he was eligible for retired pay at age 60 based upon completion of the required years of qualifying Reserve service.

8.  He was promoted to lieutenant colonel (LTC) on 5 February 2007.  His records show his MRD as 14 January 2013.  

9.  On 23 December 2010, the ABCMR denied his request to adjust his MRD and stated that he executed an oath of office and was commissioned in the USAR on 15 January 1985 at age 28.  As an operation of law, the maximum length of service for a Reserve LTC is 28 years commissioned service.  Therefore, an MRD date of “15” January 2013 was established based on his initial appointment date.  Taking into consideration Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) policy, his MRD based on maximum age would be 10 March 2009, the date he turned age 53.  In addition, the ABCMR [previously] voided his enlistment contract, reinstated him into the USAR as a commissioned officer, and promoted him to MAJ based on a Standby Advisory Board.  The ABCMR's decision also included financial compensation for the difference in pay between SGT and MAJ.  In effect, he was made whole.

10.  Title 10, U.S. Code, section 14507, provides, in pertinent part, that a commissioned officer who holds the rank of LTC 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.

11.  Army Regulation 140-10 provides, with some exceptions, for the separation of MAJ, LTC, and colonels for maximum age and/or length of service.  It specifies that 1LT, CPT, MAJ, and LTC shall be removed on the earliest of the following dates:  at 28 years of commissioned service if under age 25 at the time of the initial appointment or on their 53rd birthday if age 25 or older at the initial appointment.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his MRD should be adjusted to March 2016 because after being reinstated in the USAR as a MAJ in 2004 he was made whole only as it relates to pay.

2.  In 2004 the ABCMR corrected the applicant’s records, at his request, to void his enlistment and to reinstate him in the USAR in the rank of MAJ.  This correction meant he had no break in service.

3.  Because he was commissioned in the USAR on 15 January 1985 at the age of 28, his MRD was established as 14 January 2013 based on his initial appointment date.  As an operation of law, the maximum length of service for a Reserve LTC is 28 years commissioned service.  Changing his MRD to a later date would be contrary to law.  Even if the Board did “correct” his MRD, he would still be required to separated in January 2013 because the law would require it (in effect, a Board correction cannot override law).  Therefore, relief is not warranted.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100008775, dated 23 December 2010.



      __________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)                                         AR20110023651



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023651



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1