IN THE CASE OF: 

		BOARD DATE:	    9 July 2014

		DOCKET NUMBER:  AR20130019054 


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, adjustment of his mandatory removal date (MRD) from 1 July 2004 to 2 June 2006 and correction of his Retired Reserve orders to reflect the adjusted date and award of service credit. 

2.  The applicant states he was promised by the U.S. Army Command and General Staff College (CGSC) Adjunct Faculty that his retirement orders would be adjusted in order to continue grading papers for the old CGSC course and earn additional retirements points beyond his MRD as the new CSGC course was being phased in.  He graded 116 papers in the 2004/2005 year, thus earning 59 points, and 110 papers during the 2005/2006 year, thus earning 55 points.  He received the retirement points for both years as shown on his Army Reserve Personnel Command (ARPC) Form 249 (Chronological Statement of Retirement Points).  He was told his retirement orders would be amended since he received 2 additional years and he assumed his MRD was extended.  He was also told the extension of his MRD would not be an issue.  At the time, there were numerous announcements for retired reservists to volunteer for service during the war period.  He faithfully supported the mission and served as requested, assuming his MRD was adjusted.  In 2006, he was told by the CGSC Adjunct Faculty that he could no longer grade papers because of his MRD and the transition to the new course.  There were few instructors certified to grade CGSC papers from the old CGSC course and he was desperately needed for those students who had started the old course and needed to finish.  He knew as a lieutenant colonel (LTC), he could only serve for 28 years but he believed CGSC could get his MRD extended. 

3.  The applicant provides:

* Letter, dated 9 September 2002 from the CGSC Director of NonResident Studies
* ARPC Form 249, dated 2 August 2012
* ARPC Form 249-E, dated 6 September 2013
* DA Forms 1380 (Army Reserve Record of Individual Performance of Reserve Duty Training)
* Retired Reserve Orders C-02-402505

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on XX September 1953. 

2.  Having had prior enlisted service, he was appointed as a Regular Army commissioned officer and executed an oath of office on 2 June 1976.  He was 23 years of age at the time. 

3.  He resigned his commission and his unqualified resignation was approved.  Accordingly, he was honorably discharged from active duty on 31 March 1982.  

4.  He was appointed as a Reserve commissioned officer in the rank of captain and executed an oath of office on 1 April 1982.  He served in a variety of assignments and he was promoted to LTC on 31 May 1995. 

5.  On 30 October 1996, the U.S. Army Human Resources Command (HRC) issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

6.  He was considered for promotion to colonel by the July 2000, July 2001, July 2002, and July 2003 Reserve Components Selection Board but he was not selected for promotion.

7.  On 3 February 2004, HRC published Orders C-02-402508 transferring him to the Retired Reserve effective 1 July 2004 by reason of having reached maximum authorized years of service. 

8.  He was placed on the Retired List in his retired grade of LTC on 
15 September 2013, his 60th birthday.

9.  An advisory opinion was received from HRC on 31 January 2014 in the processing of this case.  The Chief of Retired Pay Branch recommended disapproval of his request.  The Chief stated: 

	a.  The Retired Pay Branch can only address the issues pertaining to actions within their jurisdiction.  The CGSC Adjunct Faculty had no authority in the decision making process per Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) to amend the applicant's retirement order nor in allowing him to complete inactive duty training (IDT) via grading papers.  He was not assigned to CGSC.  He was not attached to CGSC per Army Regulation 140-10, paragraph 3-7 to complete IDT duty of grading papers.

	b.  He was released from current assignment on 1 July 2004 due to completion of maximum authority years of service under the MRD per Army Regulation 140-10, chapter 7.  He submitted updates to his retirement record to the Officer Personnel Management Directorate, Personnel Action Branch on 5 September 2013.  He was informed that he was ineligible to earn lDT duty in a retired status.  It is this office's opinion that the applicant's orders placing him in the retired reserves are correct and should not be amended.

10.  The applicant submitted a rebuttal to this advisory opinion on 22 March 2014.  He stated: 

	a.  This letter provides additional information and requests an extension of his MRD to at least 4 June 2007 under the guidelines now being presented to him in order to reinstate the retirement points earned while grading papers for CGSC as an Adjunct Professor.  As his last assignment in the Army Reserves, he served for five (5) years as an Adjunct Professor for CGSC while assigned to the 2070th Battalion and then, having reached his MRD, he retired.  At this time, CGSC was revamping their course, but had numerous students still completing coursework under the old curriculum.  When HRC put out a call for instructors qualified under the old curriculum to grade papers, as one of the few available, he volunteered.  It was explained that he could earn a point for each paper graded; but, at no time was he told his MRD would have to be extended on orders in order to retain them.  

	b.  In good faith, and in the spirit of helping his brother and sister Soldiers advance their careers, he made himself available to not only grade papers, but follow up with conversations and phone calls with many of the students.  As substantiated in the attached letter, he graded 255 papers for three additional yeas (5 June 2004 to 4 June 2007).  He submitted the proper documentation at that time and was given credit on his Chronological Statement of Retirement Points which was subsequently reviewed and approved until approximately six (6) months ago, when it was suddenly decided that they were no longer valid.  He has no doubt that, had the school been aware at the time that his MRD needed to be amended, they would have [taken action].  This has been corroborated in a conversation with the Chief of Curriculum, Common Core, who stated that it was just recently (7 years after his service) brought to their attention about the prohibition of earning retirement points after MRD without amendment orders.  He said if the same circumstances occurred today, then they would put in the necessary paperwork but assumed CGSC was not aware at that time of the process that needed to be followed.  

	c.  He would like to point out that the government cannot, by law (Anti-Deficiency Act), receive free services when they knowingly must compensate appropriately.  He provided documented and substantiated service with the promise of compensation.  His retirement points reflected that compensation until it was administratively taken away and the Army Review Boards Agency must administratively make the correction for proper payment in order to avoid being in violation.  He requests that the Board reconsider his request, publish orders extending his MRD, and reinstate the points that he is due. 

11.  With his rebuttal, he submitted a statement from the Director, Department of Distance Education, CGSC, Fort Leavenworth, KS.  He states that he was able to pull the archived files for [Applicant] to review grading history.  From 5 June 2004 to 4 June 2005, he graded 93 papers.  From 5 June 2005 to 4 June 2006, he graded 110 papers.  From 5 June 2006 to 4 June 2007, he graded 22 papers. He was an integral member of the grading team during this period.  The Command and General Staff School was going through a movement from its Legacy four-phased curriculum to the three-phased curriculum.  During this        3-year span, his service as an adjunct grader aided in the successful transition between the two courses.

12.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 covers removal from active status.  Paragraph 7-2 covers length of service (Removal Rule 1).  It states: 

	a.  Exceptions to removal rule 1 are numbered 2, 3, 4, 5, 10, 14, and 15.  Also, see section III of this chapter for exceptions to removal of Army Medical Department Branch officers for length of service.

	b.  Total commissioned service or length of service.  Do not confuse removal for length of service in this paragraph with removal for maximum age.  When computing years of service or time in grade, do not count time spent on the Temporary Disability Retired list. 

	c.  Not applicable to the applicant. 

	d.  Officers and enlisted Soldiers will be removed from active status when they complete the years of service as listed in e through g of this paragraph.  First lieutenants, captains, majors, and lieutenant colonels, remove on the earlier of the following dates except as shown in (2), below.  The actual removal date will be 30 days after (a) they complete 28 years of commissioned service if under age 25 at initial appointment, or (b) their 53rd birthday if age 25 or older at initial appointment.

13.  Paragraph 7-9 provides for exceptions to removal from active status.  It states Exception Number 3, Removal Rule 1:  Retention is authorized as noted in (1) and (2), below.  These exceptions do not apply to officers twice non-selected for promotion.  The Secretary of the Army may retain officers in an active status until they complete 30 years of service.  This applies to first lieutenants, captains, majors, and lieutenant colonels in branches Army Nurse Corps and Army Medical Services Corps. 

14.  Title 10, U.S. Code, section 14507(a) (Lieutenant Colonels and Commanders): 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, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and 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 28 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a commissioned officer on 2 June 1976.  He attained the rank of LTC.  He completed 28 years of commissioned service.  His removal from the reserve active-status list was required by law and regulation.  That is why he was transferred to the Retired Reserve in July 2004. 

2.  There is no provision in the law or the regulation to extend his MRD regardless of any volunteer service he was promised or performed.  Additionally, he was neither attached nor assigned to the CGSC.  It is unclear how he was promised a provision that is contrary to law and regulation. 

3.  Regrettably, there is no error or injustice in his case.  He knew he could not serve beyond 28 years and he even acknowledges that.  He would or should have known that extension of his MRD was not authorized. 


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)                                         AR20130019054





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ABCMR Record of Proceedings (cont)                                         AR20130019054



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