IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20130011525 


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) from 1 June 2017 to 6 October 2017.

2.  The applicant states:

	a.  He was commissioned as a Regular Army (RA) officer.

	b.  On his commissioning day, he was sworn in as a U.S. Army Reserve (USAR) officer.

	c.  The reason given was that Congress had not approved RA commissions for that year group and he was told his commission was "other than RA."

	d.  From 1 June 1987 until 5 October 1987, he did not serve as a troop program unit Soldier or as an Individual Ready Reserve Soldier drilling for points only.

	e.  He was not advised by the Professor of Military Science at Rider University regarding his options and he was not afforded the opportunity to earn creditable service points as other officers in his year group were.

	f.  He requests an adjustment of his MRD to 6 October 2017 to allow him to earn the creditable months he feels he is entitled to continue to serve.

3.  The applicant provides two DA Forms 71 (Oath of Office – Military Personnel) and active duty orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 12 April 1962.  He served as an enlisted Soldier in the Regular Army from 15 March 1983 to 19 July 1985.  He was appointed as a Reserve commissioned officer on 31 May 1987.

2.  He entered active duty as a Reserve commissioned officer on 6 October 1987.  The active duty orders include the following statement:

Officer is a RA selectee.  Officer will enter on active duty as a Reserve officer.  RA appointment information will be forwarded to officer's duty station when Senate confirmation of RA appointments is made.  This confirmation is not expected until 1988.

3.  On 8 March 1988, he was appointed as an RA commissioned officer.

4.  His Chronological Statement of Retirement Points shows he earned 5 retirement points (membership) for the retirement year ending (RYE) 5 October 1987.

5.  He was discharged from active duty on 20 July 1991 and immediately appointed in the USAR.  He is currently serving in the USAR in the rank of colonel.

6.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Human Resources Command Leader Development Division, dated 23 September 2013.  This office recommended disapproval of the applicant's request and stated:

	a.  The applicant was commissioned as a Reserve officer on 31 May 1987.

	b.  He was then commissioned as an RA officer on 8 March 1988.

	c.  During the time he was a Reserve commissioned officer, he was in an active status which set his MRD and his RYE date.

	d.  The applicant did not attend inactive duty training (drill) during his RYE 1988; however, he had sufficient active duty time to qualify for a good year.

	e.  The applicant was not penalized by taking his Reserve commission in 1987.

7.  The advisory opinion was provided to the applicant for comment and/or rebuttal.  No response was received.

8.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), chapter 7, section I, provides, with some exceptions, for the separation of majors, lieutenant colonels, and colonels for maximum age and/or service.  It specifies that colonels may not exceed 30 years of commissioned service if under age 25 at initial appointment or on their 55th birthday if age 25 or older at initial appointment.

9.  Army Regulation 140-10, chapter 7, section II, also lists the authorized exceptions for removal from an active status and describes processing procedures.  It states removal from an active status for the reasons shown in section I is mandatory unless an exception is authorized in section II.  This section does not provide for an exception to the MRD based on a period for which a desired number of creditable points for retirement were not earned.

10.  Title 10, U.S. Code, section 14507 (Removal from the Reserve Active Status List (RASL) 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 that colonels, unless continued on the RASL 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 RASL) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his MRD should be adjusted because he was not afforded the opportunity to earn creditable service points during the period 1 June-5 October 1987.

2.  His argument that he was not advised of his options at the time of his commissioning was noted; however, there are no provisions in current Army regulations authorizing exceptions to the MRD policy based on this reason.  Additionally, in accordance with Title 10, U.S. Code, section 14507, a colonel will be removed from the RASL the first day of the month after the month in which he completes 30 years of commissioned service.

3.  There is no evidence of error or injustice in this case.  Allowing him to serve beyond his MRD would be contrary to law.  As such, there is no basis to grant 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)                                         AR20130013604



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ABCMR Record of Proceedings (cont)                                         AR20130011525



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