BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20130004591 


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 DD Form 214 (Certificate or Release from Active Duty) to show his separation date as 29 June 2012 vice 29 March 2012.

2.  The applicant states:

	a.  He received an amendment, dated 9 February 2012, that changed his active duty time to 19 years, 10 months, and 17 days.  His mandatory removal date (MRD) was 30 March 2012 and this gave him and the administrative staff less than 2 months for him to out-process.  His last MRD extension was only for 4 months.  He believes the extension to the 30 March 2012 date did not consider the 106 days of leave that he sold at retirement.

	b.  If the Warrior Transition Unit (WTU) team noticed the change in his active duty time, his MRD would have been moved and would have included all of his leave.  He would have obtained over 20 years of active service.  This error has cost him in pay and retirement and he wants his leave to be included in his active duty time so he can obtain a full retirement.

	c.  The WTU Consolidated Guidance states "a Reserve enlisted member" serving in an active status who is selected to be "involuntarily separated (other than physical disability or for cause)," or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member's consent before the earlier of the following:  (1) if as of the date on which the member is to be discharged or transferred from an active status, the member has at least 19 but less than 20 years of service, the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title or the second anniversary of the date on which the member would otherwise be discharged or transferred from an active status, or (2) Reserve members on active duty with more than 18 years but less than 20 years of active service may not be released from that duty until reaching 20 years service qualifying for a Regular retirement.

	d.  The WTU Consolidated Guidance also states Warriors in Transition are authorized transition leave after completing the medical process or the Physical Disability Evaluation System (PDES) process and prior to discharge, release from active duty, separation, or retirement.

3.  The applicant provides his DD Form 214, a memorandum, four orders, a Defense Finance and Accounting Service Military Leave and Earnings (LES) Statement, and four pages of email.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 30 January 1959.  He was appointed as a U.S. Army Reserve (USAR) Signal Corps second lieutenant on 17 December 1982 at age 23 years and 11 months.  He executed an oath of office on 17 December 1982 with concurrent call to active duty.  He attained the rank of captain on 1 March 1987.

2.  He was honorably released from active duty on 1 August 1993 and transferred to the 313th Support Center, USAR, Germany.  He completed 10 years, 7 months, and 15 days of creditable active service during this period.

3.  He served on active duty as a member of his USAR unit from 16 April 1996 to 10 January 1997 (8 months and 25 days) and from 26 February 2003 to 9 April 2004 (1 year, 1 month, and 12 days).  He attained the rank of lieutenant colonel (LTC) in the USAR on 4 February 2003.

4.  He was ordered to active duty as a member of his USAR unit on 7 May 2008.  He was assigned to the WTU, Fort Belvoir, VA, in February 2009.

5.  On 17 August 2011, an informal physical evaluation board (PEB) convened at Washington, DC, and determined the applicant's medical condition prevented the satisfactory performance of his assigned duties.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and he was granted a combined rating of 80 percent for post-traumatic stress disorder, left shoulder degenerative joint disease and impingement, and cervical radiculopathy.  The PEB determined he had been psychiatrically injured while deployed to Iraq in 2003 and that his condition had not stabilized to the point that a permanent degree of severity could be determined.  The PEB recommended his placement on the Temporary Disability Retired List (TDRL) with a reevaluation within 6 months of his separation.

6.  On 17 October 2011, he concurred with the PEB's findings and recommendation.  On 14 December 2011, the PEB Proceedings were approved by the Secretary of the Army (SA).

7.  Orders 038-003, dated 7 February 2012, issued by U.S. Army Garrison (USAG), Fort Belvoir, VA, released him from active duty because of physical disability effective 29 March 2012 and placed him on the TDRL on 30 March 2012.  These orders show he completed 16 years, 6 months, and 15 days of creditable active service.

8.  Orders 040-0007, dated 9 February 2012, issued by USAG, Fort Belvoir, VA, amended Orders 038-003 to show he completed 19 years, 10 months, and 17 days of creditable active service.

9.  The DD Form 214 he was issued for this period of service shows he was honorably retired from active duty on 29 March 2012 by reason of temporary (enhanced) disability and assigned to the USAR Control Group (Retired) on 30 March 2012.

10.  This DD Form 214 also shows the following entries in:

* item 12a (Date Entered Active Duty This Period) – "2008  05  07"
* item 12b (Separation Date This Period) – "2012  03  29"
* item 12c (Net Active Service This Period) – "0003  10  23"
* item 12d (Total Prior Active Service) – "0013  07  25"
* item 12e (Total Prior Inactive Service) – "0011  08  25"

11.  Orders 12-227-00036, dated 14 August 2012, issued by Headquarters, USAR Command, Fort Bragg, NC, assigned him to the Retired Reserve effective 30 March 2012 by reason of maximum authorized years of service.

12.  His records contain an Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 7 March 2013, wherein it shows he completed 29 years, 3 months, and 14 days of qualifying time for 
non-Regular retirement.

13.  The applicant provides an LES for a check dated 20 April 2012.  This LES shows was paid for 99.5 days of accrued leave.

14.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides, with some exceptions, for the separation of an LTC for maximum age and/or service.  Chapter 7 specifies LTC's may not exceed 28 years of service if under age 25 at initial appointment or age 60.  This regulation also provides that removal must be accomplished within 30 days after the date of completion of the required years of service.

15.  WTU Consolidated Guidance, paragraph 5-10, states a Soldier will be discharged upon reaching MRD.  The Soldier or WTU commander may take action to retain the Soldier beyond his or her MRD to undergo required health care or to complete processing through the PDES.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states separation or retirement for physical disability will normally occur within 20 days from the date of approval of the determination of physical unfitness by the SA.  It also states Soldiers can be extended on active duty to use accrued leave only if the leave cannot be sold back to the government.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a USAR LTC who was initially commissioned on 17 December 1982 at the age of 23 years and 11 months.  Based on his rank and initial appointment date, his MRD was established as 16 December 2010.

2.  At the time he was placed on the TDRL, he had a total of 19 years, 10 months, and 17 days of creditable active service and over 29 years of commissioned service.  As an operation of law, the maximum length of service for a Reserve LTC is 28 years of commissioned service.  There are no provisions to extend an individual past his or her MRD to attain 20 years of active service.

3.  However, because he was assigned to a WTU and was processing through the PDES, he was retained on active duty past his MRD as authorized.  Once his PEB was complete, he was required by regulation to be retired within 20 days from the date of approval of the determination of physical unfitness by the SA.  As he was placed on the TDRL over 3 months after the SA approved the PEB Proceedings, it appears he was given more than ample time to out-process from his unit.

4.  In addition, the applicant cashed in over 99 days of accrued leave; leave that is sold does not count toward time served.  His DD Form 214 properly reflects his separation date as 29 March 2012.

5.  As for his contention regarding the WTU Consolidated Guidance, the WTU guidance clearly states retention until reaching 20 qualifying years of service for retirement does not apply to Soldiers being separated for physical disability.

6.  In view of the foregoing, he is not entitled to 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 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)                                         AR20130004591



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ABCMR Record of Proceedings (cont)                                         AR20130004591



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