BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009171 


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 correction of his separation date from the U.S. Army Reserve (USAR) Control Group (Reinforcement) from 1 November 2000 to 14 May 1996 and exemption from any back pay that would be owed due to the change in time in service if the effective date is changed.

2.  The applicant states he was appointed in the Regular Army (RA) on 5 May 1988, gaining an 8-year statutory obligation.  He was transferred to the USAR Individual Ready Reserve (IRR) effective 2 March 1993 to complete his 8-year obligation and should therefore have been separated from the IRR effective 14 May 1996.  He was unaware that he was still in the IRR until he was accessed into the Army National Guard (ARNG) on 2 November 2000.  Due to poor advice from State subject matter experts, this error will keep him from obtaining 20 years of active Federal service (AFS) as an ARNG Active Guard Reserve (AGR) officer under Title 32, U.S. Code.

3.  The applicant provides:

* Personnel Qualification Record – Officers/Warrant Officers
* 1993 active duty assignment orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* 1993 USAR appointment memorandum
* 1993 Oath of Office
* captain's promotion memorandum
* 2000 reassignment orders
* notification of promotion status memorandum
* eligibility for promotion as a Reserve commissioned officer not on active duty memorandum
* ARNG Current Annual Statement
* letter of support from the Iowa ARNG

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was appointed as a second lieutenant in the USAR from the Reserve Officers' Training Corps effective 15 May 1988. 

3.  He was appointed in the RA as a second lieutenant effective 2 March 1989.  He was promoted to first lieutenant effective 2 March 1991.

4.  Orders 16-19, Headquarters, 82nd Airborne Division, dated 27 January 1993, reassigned him for discharge with an effective date of 2 March 1993.  He was discharged on 2 March 1993 under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 3, by reason of his unqualified resignation.

5.  On 2 March 1993, the U.S. Total Army Personnel Command (now known as U.S. Army Human Resources Command (HRC)) issued a memorandum appointing him in the USAR as a first lieutenant with an effective date of 23 April 1993.  The memorandum stated the appointment was for an indefinite term.  The memorandum also stated he could not resign his Reserve status until completion of 8 years of total service.

6.  On 23 April 1993, he executed an oath of office for appointment in the USAR.

7.  He was promoted to captain in the USAR effective 10 June 2000.

8.  On 17 October 2000, he completed and signed a National Guard Bureau (NGB) Form 62-E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG of the United States).  He applied for Federal recognition as a captain in the Iowa ARNG.  He stated he was presently a member of the IRR and had been since 3 March 1993.  On the same date, the Iowa ARNG requested extension of Federal recognition to him in the Iowa ARNG Infantry Branch with an appointment date of 2 November 2000 per Iowa ARNG Orders 231-051.

9.  Orders 231-051, Headquarters, Iowa ARNG, dated 30 November 2000, appointed him in the Iowa (IAARNG, as a captain, with an effective date of 2 November 2000.

10.  Orders C-12-034545, USAR Personnel Command, dated 8 December 2000, released him from the IRR and assigned him to the Iowa ARNG with an effective date of 2 November 2000.  The orders stated his membership in the USAR was terminated on the date preceding his appointment in the ARNG and a final discharge certificate would not be issued.

11.  On 26 July 2001, he was notified of his non-selection for promotion to major by the 2001 Reserve Component Selection Board (RCSB).  He was selected for promotion to major by the 2002 RCSB and promoted to major effective 4 April 2003.

12.  His ARNG Current Annual Statement, dated 13 June 2011, shows he was credited with 15 years of service for retired pay as of his retirement year ending (RYE) on 14 May 2011.

13.  He is currently serving in an ARNG AGR status with a mandatory removal date (MRD) of 14 May 2016 (completion of 28 total years of service).

14.  In a memorandum, dated 24 April 2012, the Iowa ARNG stated its full support of the applicant's request for correction of his separation from the IRR.  Through no fault of his own, the applicant unknowingly remained in a military status in the IRR from the expiration of his initial service obligation of 14 May 1996 through his accession into the Iowa ARNG on 2 November 2000.  If the applicant's request is disapproved, he will not attain 20 years of AFS prior to reaching his mandatory removal date.

15.  In the processing of this case, an advisory opinion was provided by the Chief, Leader Development Division, HRC, dated 19 September 2012.  HRC stated:

	a.  The applicant requested assistance correcting his records to show a break in service from 1996-2000.

	b.  The applicant separated from the RA on 2 March 1993 and was subsequently commissioned as a Reserve officer to serve his remaining military service obligation (MSO).  The appointment letter stated that his appointment was for an indefinite term and he could not resign his commission until completion of a total of 8 years of service.  There are no statements or implications outlining an automatic separation upon completion of the MSO.  Since the applicant did not request resignation upon completion of his MSO, he continued to serve in the IRR until his transfer to the ARNG.

	c.  HRC reviewed the application and administrative action and determined that no administrative action could be taken on the applicant's request at that time.

16.  On 21 October 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  In his response, dated 21 October 2012, the applicant stated:

	a.  He submitted an unqualified resignation from the RA and was separated on 2 March 1993.  On 23 April 1993, he swore an oath of office and was appointed as a Reserve commissioned officer effective 3 March 1993.  This took place at the U.S. Army Recruiting Company in Fullerton, California.  There he was counseled by the commanding officer that he would be separated from the USAR with no action required on his part upon completion of his MSO.  He could not recall who this officer was, but he sincerely believes he was officially separated from the IRR following completion of his MSO on 14 May 1996.

	b.  When he was accessed into the ARNG on 2 November 2000 he was informed that he was still in the IRR and had not been separated as he believed. 
After discussions with the Iowa ARNG Chief of Staff and G-1 Officer Manager, he was told that his existing MSO would not prevent him from completing 20 years of AFS.  Had he known otherwise, he would have taken other actions at that time, including pursuing this request immediately.

	c.  He respectfully requests adjustment of his MRD so he can attain 20 years of AFS.  He has exhibited exceptional performance and leadership during his career and has deployed to fight in Iraq twice.  He believes he should not be separated from Title 32 AGR status short of 20 years of active Federal commissioned service because he was improperly counseled by a superior officer in 1993 and given poor advice later in his career.

17.  National Guard Regulation 635-100 prescribes the policies governing the separation of commissioned officers of the ARNG.  The regulation states in:

	a.  paragraph 5(2)(a)3 that officers in the grade of lieutenant colonel and below, all branches, will be removed from an active status in the ARNG upon completion of 28 total years of service.  Officers removed from an active status by reason of completion of maximum service may be transferred to the Retired Reserve if they are qualified and apply therefor; and

	b.  paragraph 53(b) that all officers who are not earlier removed from active status by reason of time in grade, length of service, or another reason must be removed from an active status of the ARNG on the last day of the month which they attain age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation date from the IRR should be corrected to 14 May 1996 which would allow him to complete 20 years of AFS.

2.  The evidence of record shows he was initially appointed in the USAR from the ROTC effective 15 May 1988.  He was appointed in the RA effective 2 March 1989.  He was discharged from the RA on 2 March 1993 by reason of his unqualified resignation.  On 2 March 1993, he was issued an appointment memorandum for appointment in the USAR with an effective date of 23 April 1993.  The appointment memorandum advised him that he could not resign his Reserve status until completion of 8 years of total service.  He executed an oath of office in the USAR on 23 April 1993.  He was promoted to captain in the USAR in June 2000.

3.  On 17 October 2000, he applied for appointment in the IAARNG.  He stated he was presently serving in the IRR since March 1993.  In December 2000, HRC issued orders releasing him from the IRR and assigning him to the IAARNG with an effective date of 2 November 2000.  Therefore, it appears the applicant knowingly continued to serve in the IRR until he was transferred to the IAARNG in November 2000.  There is no evidence of record and he provided none to show he resigned or requested to be separated from the IRR upon the completion of his MSO or prior to October 2000.  Therefore, he is not entitled to correction to his separation date from the IRR from 2 November 2000 to 14 May 1996 and/or exemption from any back pay that would be owed due to the change in time in service if the effective date is changed.

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)                                         AR20120009171



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ABCMR Record of Proceedings (cont)                                         AR20120009171



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