IN THE CASE OF: 

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20110024966 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be:

* deemed eligible to be considered for promotion
* considered for promotion by a Special Selection Board under the criteria for each year he should have been considered

2.  Counsel states this application is predicated upon a series of errors made when the applicant was recalled to active duty in 2004.  These errors have resulted in the Army's failure to consider the applicant for promotion to lieutenant colonel (LTC)/O-5 in each of the years he was eligible and should have been considered.  If he is selected by an SSB, the selection should result in back pay, allowances, and an adjusted date of rank.

3.  Counsel provides copies of:

* a five-page statement
* correspondence from The Adjutant General, Joint Force Headquarters – Alaska
* the applicant's Officer Record Brief (ORB)
* the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 1995
* a list of Separation Program Designator Codes
* orders
* Title 10, U.S. Code, (10 USC) Sections 628, 688, and 688a
* Department of Defense (DOD) Directive Number 1352.1, subject:  Management and Mobilization of Regular and Reserve Retired Military Members
* Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations)
* e-mail correspondence
* U.S. Army Human Resources Command (HRC) Assignment Instructions
* two memoranda, subject:  Promotion Qualification and Recommendation, from Headquarters, State Area Command, Alaska Army National Guard (AKARNG)
* the Memorandum and Order issued by the U.S. District Court for the District of New Hampshire in the case of Lambert v. Secretary of the Navy (SECNAV)

CONSIDERATION OF EVIDENCE:

1.  On 24 May 1988, the applicant was discharged from the U.S. Air Force after completing 7 years, 11 months, and 27 days of active military service.  On 25 May 1988, he was appointed as a captain/O-3 in the Army National Guard (ARNG).

2.  On 26 May 1988, he entered active duty in an Active Guard Reserve status.  

3.  On 6 July 1995, the Office of the Adjutant General, Department of Military and Veterans Affairs, State of Alaska, Fort Richardson, AK, issued Orders 187-4.  The orders released him from active duty effective 31 August 1995 and placed him on the retired list effective 1 September 1995.  The orders list the authority for his retirement as Title 10, USC, Section 3914 (10 USC 3914) and show he completed 15 years, 3 months, and 3 days of service at the time of his voluntary retirement.  His record includes a DD Form 214 showing he was released from active duty in the rank/grade of major (MAJ)/O-4 on 31 August 1995.

4.  On 26 August 2004, HRC, St. Louis, MO, issued Orders A-08-491763, which recalled him to active duty from his retired status.  The orders show he was to report to the University of Idaho on 10 October 2004 to fulfill a 3-year active duty commitment as an obligated volunteer officer in a voluntary indefinite status.  The orders cite the authority for his recall as Title 10, USC, Section “1552.”  His record shows he reported as ordered.

5.  On 12 July 2006, HRC issued assignment instructions assigning him to the Transition Team Kuwait with further assignment to Transition Team Iraq effective 28 January 2007.  

6.  On 16 March 2007, HRC issued assignment instructions assigning him to U.S. Army Alaska, Fort Wainwright, AK, effective 15 April 2008.  

7.  On 14 June 2007, he submitted a DA Form 4187 (Personnel Action) requesting a 1-year extension to remain on active duty until 30 September 2009.  The Remarks section of the form shows he had a follow-on assignment to Fort Wainwright and would incur a 3-year active-duty service obligation in accordance with Army Regulation 614-30, Table D-1.  The form shows his current aviator recall was to expire on 30 September 2008.  The record shows his request was approved.

8.  On 27 September 2007, HRC issued Assignment Instructions assigning him to Headquarters Company, U.S. Army Garrison Alaska, Fort Richardson, AK, effective 15 July 2008.  

9.  On 26 April 2011, HRC issued Orders A-04-108482 recalling him to active duty from retired status for a period of 365 days with a reporting date of 1 May 2011.  The orders show the authority for his recall was 10 USC 688.  On 16 August 2011, HRC issued Orders A-04-108482A01, amending Orders 
A-04-108482 to show he was ordered to active duty for 366 days.

10.  On 29 April 2011, the Installation Management Command, U.S. Army Element, Joint Base Elmendorf-Richardson, AK, issued Orders 119-0171, which assigned him to a Transition Center for separation processing effective 29 April 2011.  

11.  On 30 April 2011, he was released from active duty by reason of required active service, and his record indicates he reentered active duty the next day.  Item 18 (Remarks) of the DD Form 214 issued at that time shows:

* his retired list grade is MAJ
* his U.S. Army Reserve retired grade is MAJ
* he served under 10 USC 688a from 10 October 2004 to 30 April 2011

12.  On 10 February 2012, HRC issued Orders A-02-202584, which recalled him to active duty from retired status effective 1 May 2012 for a period of 365 days.  The orders show the authority for his recall was 10 USC 688.  

13.  His record shows he is currently serving on active duty as ordered, and it appears he has submitted a request for another active duty tour as a retiree recall.

14.  Counsel states:

	a.  The applicant is a graduate of the U.S. Air Force Academy, the source of his commission, and he is a qualified aviator.  His date of rank as a MAJ/O-4 is 17 August 1989.  As a result of a personnel drawdown enacted by Congress following the fall of the Berlin Wall, officers such as the applicant were offered the opportunity to retire pursuant to the Temporary Early Retirement Act (TERA), and the applicant retired with 15 years of service in 1995.

	b.  He has provided a copy of the orders that recalled the applicant to active duty.  It is to be expected that such orders would reflect the authority being exercised to accomplish the recall.  However, these orders report the authority as "10 USC Section 1552."  That statute is the basis for the Boards for Correction of Military Records.  Prior to this application, the applicant had made no application to a Board for Correction of Military Records.  The authority entered on the orders avoids the distinction between 10 USC 688 and 10 USC 688a, and ignores the actual authority for his recall, 10 USC 688a.  

	c.  In calling the applicant to active duty, there was fundamental failure to recognize the statutory authority pursuant to which he was being placed on active duty.  There are two different statutes:  10 USC 688 and 10 USC 688a.  Each is a stand-alone authority for calling an officer to active duty.  The confusion and error which resulted in his denial of promotion consideration can be attributed to a fundamental misunderstanding that these statutes are distinct and independent.  They are independent of each other such that if one were repealed, the other would survive.  The source of the confusion is the way 10 USC 688a is identified in U.S. Code.  Because it was inserted between 688 and 689, the designation "a" was used to differentiate it from 688, which appears to have caused personnel officers to conclude it was a subsection of 688, such as 688(a).  As is evident from the legislation enacting section 688a, it is a distinct and separation Congressional authority authorizing the Secretary of a Military Department to call a retired officer to active duty, provided that the exclusions from the authority do not apply.  That 688a is separate and distinct from 688 is best established by the plain language of 688a:

       (1)  "Relationship to Other Authority.—The authority to order a retired member to active duty under this section is in addition to the authority under section 688 of this title or any other provision of law authorizing the Secretary concerned to order a retired member to active duty."
       (2)  "Inapplicability of Certain Provisions.—Retired members ordered to active duty under subsection (a) shall not be counted for purposes of section 688 or 690 of this title."

       (3)  "In addition to and shall not be counted for" make clear that these statutes are not one and the same.

	d.  There are distinct differences between 688 and 688a.  Whereas 688 provides that the Secretary of Defense shall prescribe regulations implementing the statute, 688a contains no such provision and provides the Secretary of a Military Department with the authority to order an officer to active duty.  Department of Defense (DOD) Directive 1352.1 does not reference section 688a.

	e.  Of particular note is the provision of section 689 that adopts section 689(d) of Title 10 as applicable to 688a:

	"Grade Upon Release from Active Duty.—A member ordered to active duty under section 688 or 688a of this title who, while on active duty, is promoted to a grade that is higher than that member's retired grade is entitled, upon that member's release from that tour of active duty, to placement on the retired list in the highest grade in which the member served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months."

	f.  As is clear from the provision of 689(d), an officer called to active duty under 688a is eligible for promotion consideration and the statute does not provide for the discretion of the Secretary of the Army to deny such an officer that promotion consideration.  This is to be distinguished from 688, which provides that the Secretary of Defense shall prescribe implementing regulations.  This is significant because, assuming that the Secretary of Defense has delegated his authority to the Secretary of the Army to issue implementing regulations, the Secretary of the Army, in section 2-4d of Army Regulation 601-10, has provided that retired officers called to active duty pursuant to 688(a) "are not eligible for promotion."  Herein lies the fundamental confusion that has brought the applicant before the Army Board for Correction of Military Records:  688(a) is a subparagraph of 688, whereas 688a is a different statute.  As a result, the regulatory prohibition against promotion for officers brought to active duty under 688(a) is inapplicable as a matter of law to officers brought to active duty under 688a.  Further, the Secretary is without the discretion to deny such an officer promotion consideration and the provision of 689(d) clearly contemplates such consideration.  The applicability of the Secretarial limitation is for 688(a), not for 688a.  That the parenthetical "(a)" would result in such a distinction is unusual, but nonetheless controlling.
	g.  The effort to reconcile statutory differences by military policy personnel is not without precedent.  But the simple truth is that Congress is not to be second guessed in its language when the language, by inclusion, exclusion or silence is unambiguous.  The presumption is that Congress, in enacting legislation, is well aware of the meaning of its language when the language is clear and requires no interpretation to derive its meaning.  Effort to import the Congressional language of 10 USC 688, which gave the Secretary the authority to issue implementing regulations, is not to be found in 10 USC 688a.  Absent such discretion, the Secretary is obliged to adhere to the clear mandate of the law and provide to the applicant the opportunity to be considered for promotion, as defined in 10 USC 628.

16.  On 13 February 2012, during the processing of this case, the Chief, Promotions Special Actions, HRC, provided an advisory opinion.  The advisory official noted the applicant chose and was approved for voluntary early retirement effective 31 March 1995.  Therefore, any future tours on active duty or in an active status would not result in him being eligible for promotion consideration.  The advisory official also noted his office could not confirm that the applicant was recommended and approved for promotion prior to his voluntary separation date.

17.  On 9 March 2012, counsel responded to the advisory opinion, stating, in part:

* the applicant's early retirement is irrelevant as the statutory authority for early retirement (Public Law 102-484, Section 4403) is silent on the implications of a return to active duty
* the advisory opinion does not address the statutory authority for the applicant's recall to active duty
* if there were legal or regulatory authority for denying the application, it is logical to expect it would have been cited by HRC
* the appropriate course of action is to acknowledge the Army made an error and correct it by directing the applicant be considered for promotion

18.  Army Regulation 601-10 covers the management and mobilization of retired Soldiers of the Army during war, national emergency, or when otherwise authorized by law.  It states a recalled retiree is a retired Soldier who is ordered to active duty from the Retired Reserve or the retired list under 10 USC 688(a), 12301(a), or 12301(d) and serves in his or her retired status.  Regular Army retirees and members of the Retired Reserve who are recalled to active duty under the provisions of 10 USC 688(a) will be included in the active duty end strength.  Paragraph 2-4d states retired military personnel recalled to active duty in retired status are not eligible for promotion.

19.  10, USC, chapter 36, provides for the promotion, separation, and involuntary retirement of officers on the active duty list.  

	a.  Section 611 of this chapter provides that, whenever the needs of the service require, the Secretary of the military department concerned shall convene selection boards to recommend for promotion to the next higher permanent grade officers on the active-duty list in each permanent grade from first lieutenant through brigadier general.  

	b.  Section 620 of this chapter defines the active-duty list.  It states the Secretary of the military department concerned shall maintain a single list of all officers (other than officers described in section 641) who are on active duty for each armed force under his jurisdiction.  

	c.  Section 641 (10 USC 641) states retired officers on active duty are not subject to chapter 36.  

20.  Army Regulation 600-8-29 (Officer Promotions) states an SSB may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers one or more of the following:  
	a.  An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required).
	b.  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or 
	c.  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's request that the applicant be deemed eligible to be considered for promotion and that he be considered for promotion by an SSB.  

2.  The applicant's record shows he retired on 31 August 1995.  Effective 10 October 2004, he was ordered to active duty as a retired officer under the provisions of 10 USC 688a.  He served under this statute through 30 April 2011.  Effective 1 May 2012, he was ordered to active duty as a retired officer under the provisions of 10 USC 688.

3.  10 USC 641 states retired officers on active duty are not subject to the provisions 10, USC, Chapter 36.  This provision of law makes no distinctions regarding whether a retired officer is on active duty under the provisions of 10 USC 688 or 10 USC 688a.  Accordingly, as a matter of law, the applicant, as a retired officer on active duty is not eligible for promotion consideration by an SSB.  

4.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20110024966



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ABCMR Record of Proceedings (cont)                                         AR20110024966



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