IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130007851 


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 adjustment of his mandatory removal date (MRD) to   1 July 2008 vice 9 May 2007. 

2.  He states:

* He was initially transferred to the Retired Reserve on 1 July 2004 for non-selection to the grade of colonel/O6
* After a 1 year, 6 month, and 18 day break in service, he was selected for promotion to O6 by a Special Selection Board (SSB) and his retirement orders were revoked
* He was returned to an active Reserve status on 19 January 2006
* He was discharged on 9 May 2007 based on a 30-year maximum period of service
* Based on the break in service, his MRD should have been 1 July 2008
* As a result of the error, he was denied the opportunity to apply for the Army War College, to compete for O6 command positions, promotion to flag rank, and accrual of additional membership and retirement points

3.  He provides:

* Self-authored statement
* Orders

* 04-148-00004, dated 27 May 2004
* 06-019-00001, dated 19 January 2006
* 06-019-00003, dated 19 January 2006
* B-01-600764, dated 24 January 2006
* C-03-707878, dated 13 March 2007
* C-05-712720, dated 7 May 2007

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 was appointed as a Reserve commissioned officer and executed an oath of office on 18 June 1976.  He served in a variety of stateside and/or overseas assignments, with multiple entries on active duty.  He was promoted to lieutenant colonel on 1 June 1996.  

3.  On 2 November 2000, 4 December 2001, and 14 November 2002, the U.S. Army Reserve (USAR) Command notified him that he was considered by the Army Reserve Components Selection Board that convened on 11 July 2000, 
10 July 2001, and 8 July 2002, respectively, for promotion to colonel, but he was not selected. 

4.  Orders 04-148-00004, dated 27 May 2004, show he was released from active duty on 1 July 2004 by reason of obtaining the maximum authorized years of service and transferred to the Retired Reserve.  However, Orders 06-019-0001, dated 19 January 2006, revoked these orders.  He was subsequently assigned to the USAR Control Group (Reinforcement), effective 2 July 2004.

5.  Orders B-01-600764, dated 24 January 2006, show he was promoted to colonel with an effective date and date of rank of 2 July 2004.

6.  Orders C-03-707878, dated 13 March 2007, show he was released from the USAR Control Group (Reinforcement) on 16 March 2007 and reassigned to the Retired Reserve by reason of "elected not to continue past military service obligation."    
7.  Orders C-05-712720, dated 7 May 2007, show he was released from the USAR Control Group (Reinforcement) on 9 May 2007 and reassigned to the Retired Reserve by reason of completing the maximum authorized years of service.

8.  On 24 June 2013, an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC), Chief, Leader Development Division.  An official recommended disapproval of the applicant's request.  The official states:

   a.  The applicant was commissioned on 18 June 1976 and served without a break in service through his MRD.  He was transferred to the Retired Reserve effective 1 July 2004 for maximum service.  When the applicant was selected for promotion to O6 by the SSB, his Retired Reserve orders were revoked reinstating him into the active Reserves.  

	b.  The official states that in accordance with Title 10, section 628, an officer selected for promotion by an SSB will have the same date of rank and the same effective date for pay as he would have had if he had been recommended for promotion by the board which should have considered him.  Therefore, the applicant was assigned a date of rank of 2 July 2004 and his new MRD for maximum service should have been set to 1 July 2006 since there was no break in service since his Retired Reserve orders were revoked to allow him to be promoted.  Through an administrative oversight, he was not transferred to the Retired Reserve until 9 May 2007, allowing him to serve nearly one extra year after his MRD.

9.  On 12 August 2013, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response, but he failed to respond.

10.  Title 10, U.S. Code, section 14507 (Removal from the Reserve Active-Status List for Years of Service:  Reserve Lieutenant Colonels and Colonels of the Army, Air Force, and Marine Corps and Reserve Commanders and Captains of the Navy) states, in pertinent part, that colonels, unless continued on the Reserve active-status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each Reserve officer of the Army, who holds the grade of colonel 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 30 years of commissioned service.  This subsection does not apply to the adjutant general or assistant adjutants general of a State.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a Reserve commissioned officer on 18 June 1976.  He received orders transferring him to the Retired Reserve effective 1 July 2004 after being passed over for promotion to colonel on three separate occasions.  On 24 January 2006, he was promoted to colonel by an SSB with an effective date of 2 July 2004.  His orders transferring him to the Retired Reserve were revoked and he was reinstated in the active Reserve.  The revocation of those orders voided his break in service.

2.  Since there was no break in service, he completed 30 years of service on 
17 June 2006.  In accordance with Title 10, U.S. Code, section 14507, a colonel will be removed from the Reserve active-status list the first day of the month after the month in which he completes 30 years of commissioned service (1 July 2006).  However, due to an administrative oversight, he was not transferred to the Retired Reserve until 9 May 2007.

3.  The circumstances surrounding the applicant’s separation from an active status, reinstatement to an active status, and subsequent separation from an active status are regrettable.  However, by law he is not entitled to an adjustment of his MRD. 

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)                                         AR20120007851





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ABCMR Record of Proceedings (cont)                                         AR20130007851



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