IN THE CASE OF:	

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130007105 


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, in effect, correction of his military records to change his mandatory removal date (MRD) to 1 January 2019.

2.  The applicant states he was erroneously discharged in 2003.  This has already been corrected by revocation order D-11-341500R.  However, the correction and his military record was backdated to 2003.  As a result, his military record now erroneously shows 7 November 2003 to 17 April 2006 as commissioned service in the Individual Ready Reserve (IRR) and not as a break in his service.  His MRD needs to be adjusted to allow for the 3 years he was unable to perform service as a commissioned officer.  Because he was erroneously discharged in 2003 he was unable to serve and earn retirement points.  This was corrected in 2006.  Now his MRD is being calculated to include commissioned service for the period of his break from 2003 to 2006.  This was a period for which he was prevented from serving because of the erroneous discharge that was in effect.

3.  The applicant provides copies of:

* Orders D-11-341500R, U.S. Army Human Resources Command (AHRC), dated 17 April 2006
* Orders D-11-341500, AHRC, dated 7 November 2003
* Website Data Records from AHRC, dated 29 March 2013



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.  On 5 June 1984, the applicant enlisted in the U.S. Army Reserve (USAR).  

3.  On 8 January 1989, the applicant entered active duty as a USAR commissioned officer.  On 1 May 1993, he was promoted to captain, pay grade O-3.

4.  On 24 August 1997, the applicant was voluntarily released from active duty (REFRAD) and transferred to the IRR.

5.  Orders C-12-939906, USAR Personnel Command, dated 10 December 1999, transferred the applicant from the IRR to Headquarters and Headquarters Company, 640th Area Support Group, located in Nashville, TN.

6.  A memorandum for the applicant, from the U.S. Total Army Personnel Command, dated 14 January 2000, notified him that he had been considered for but not selected for promotion to major, pay grade O-4.

7.  Orders 082-35L, 81st Regional Support Command, dated 22 March 2000, reassigned the applicant to the 2nd Battalion, 364th Regiment, located at Fort Lewis, WA, effective 11 February 2000.

8.  Orders 00-286-004, 91st Division, dated 12 October 2000, reassigned the applicant to the IRR, effective 11 November 2000.

9.  A memorandum for the applicant, from the U.S. Total Army Personnel Command, dated 7 August 2003, notified him that he had been considered for but not selected for promotion to major, pay grade O-4.  As a result of this second non-selection, he must be discharged in accordance with Title 10, U.S. Code, section 14513 or Army Regulation 140-10, not later than his established removal date of 1 February 2004.

10.  Orders D-11-341500, AHRC, dated 7 November 2003, announced his discharge from the USAR effective 1 February 2004.  Orders D-11-341500R, AHRC, dated 17 April 2006, revoked the earlier orders dated 7 November 2003.

11.  Orders B-04-603333A01, AHRC, dated 25 April 2006, amended Orders B-4-603333, HRC, dated 25 April 2006, announcing a correction of the applicant's promotion to major, pay grade O-4, to show an effective date and date of rank of 10 February 2000.

12.  HRC Form 4145 (Election of Options - Military Service Obligation) dated 
10 October 2006, indicates that the applicant elected to transfer to a Selected Reserve unit.

13.  Orders C-10633260, AHRC, dated 19 October 2006, reassigned the applicant to the 70th Regional Reserve Command, located in Seattle, WA, with an effective date of 19 October 2006.

14.  The applicant was promoted to lieutenant colonel, pay grade O-5, with an effective date and date of rank of 3 January 2011.  His MRD was established as 1 January 2016.

15.  Orders A-01-300256, AHRC, dated 7 January 2013, ordered the applicant to active duty for operational support under the provision of section 12301, Title 10, U.S. code for a period of 239 days, to end on 30 September 2013.  The purpose of this activation was to provide support to the U.S. Army Europe Africa Command located in Stuttgart, Germany.

16.  In the processing of this case, an advisory opinion was obtained from the Chief, Leader Development Division, AHRC, dated 23 May 2013.  The advisory opinion states that the applicant was commissioned on 20 December 1987.  He was discharged on 1 February 2004 as a two-time non-select to major.  His discharge was subsequently revoked in April 2006, resulting in his being credited with commissioned years of service from 2004 to 2006.  Because of his discharge, he had no opportunity to drill for points during this period because he had been discharged.  However, there is no indication that he would have participated had he not been discharged.  This observation is based on his non-participation from 1999 through his discharge in 2004.  Accordingly, the opinion recommends denial of the applicant's request to change his MRD.

17.  On 11 June 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  The applicant responding, saying that he believed the advisory opinion was incomplete.  He further stated that his non-selection for promotion to major was due to an error in the promotion board process that was later corrected.  He also argues that the advisory opinion makes an egregious error by assuming he would not have participated during the 2004-2006 period.  He based his statement on the fact that this was just after the commencement of the Global War on Terror.  He argues that he did in fact attempt to find a unit but because of the promotion board selection error, no unit wanted him.  He contends he requested assignment and drilled within 6 months of the erroneous discharge being revoked.  He also finds it disturbing that someone believes the error did not need to be corrected because they already know his intention is to not drill.  He points out that he wrote the response to this opinion from overseas while serving on an active assignment.

18.  ARPC Form 249-E (Chronological Statement of Retirement Points) printed on 11 September 2013, shows that the applicant did not earn any extension course points, active duty points, or complete a qualifying year for retirement between 5 June 1998 and 4 June 2006.  He also did not complete a qualifying year for retirement from 5 June 2006 to 4 June 2007; and from 5 June 2010 to 
4 June 2011.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected to change his MRD to 1 January 2019 because he was erroneously discharged as a result of a promotion board error that caused him to be twice non-selected for promotion to major.

2.  The available evidence clearly shows that the applicant was twice non-selected for promotion to major and subsequently discharged.  Three year later, his discharge was revoked based on a promotion board error.  This immediately caused him to be credited with 3 years of commissioned service for which he contends he was not able to earn retirement points.

3.  The advisory opinion argues that it is reasonable to presume the applicant would not have earned any retirement points during those 3 years because he had not done anything to earn points during the immediately preceding 5 years.  The applicant argues that this is not true because the Global War on Terror had begun and he had attempted to find an assignment but was not wanted because of the promotion board error showing him to be non-select.  Unfortunately, there is no available evidence of record showing that he had requested assignment at anytime between 1999 and his October 2006 request for assignment to a Selected Reserve unit.  

4.  The applicant has not made a sufficiently convincingly argument and has not provided documentation showing that he had requested assignment at any time during the 4 or 5 year period prior to his discharge.

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 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)                                         AR20130007105





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007105



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1