BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140005307 


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 records to show he was released from Federal recognition (Honorable Discharge) on 18 November 2003.

2.  The applicant states that on 18 November 2002 he submitted his letter of resignation from the Michigan Army National Guard (MIARNG) and he never received any follow on communication.  He contends the following administrative errors led to his mandatory retirement date (MRD) and time in grade (TIG)/date of rank (DOR) to be improperly calculated: 

* he was transferred to the Inactive National Guard (ING), effective 
31 December 2003
* his civilian break in service from 18 November 2002 to 30 October 2008 is not reflected in his record

3.  The applicant provides a copy of his:

* Letter of Resignation
* National Guard Bureau (NGB) 23A (Army National Guard Retirement Points History Statement), prepared 22 November 2013
* Special Orders Number 114 AR, dated 14 April 2005
* Special Orders Number 196 AR, dated 29 June 2005
* Special Orders Number 13 AR, dated 15 January 2009



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 is currently serving in the MIARNG in the rank of captain (CPT/O-3).

3.  His promotion history shows that after having prior enlisted service, he was granted Federal recognition and appointed as a Reserve commissioned officer in the Wisconsin (WIARNG) on:

* 24 August 1990 as a second lieutenant (2LT/O-1)
* 1 November 1996 as a first lieutenant (1LT/O-2)
* 10 July 1997 as CPT/O-3

4.  Special Orders Number 98 AR, issued by the Chief, NGB, dated 4 April 2002, show he was transferred to the MIARNG effective 5 March 2002.

5.  The applicant submits a memorandum SUBJECT:  Letter of Resignation, dated 18 November 2002, wherein he requested resignation from the MIARNG to civilian status in order to accept employment in Wisconsin.

6.  On 31 December 2003, he was transferred to the ING as announced in Special Orders Number 114 AR, dated 14 April 2005.

7.  Departments of the Army and the Air Force NGB Special Orders Number 
196 AR, dated 29 June 2005, withdrew the applicant's Federal recognition effective 31 May 2005.

8.  His ARNG Retirement Points History Statement shows his military status as:

* ING for the period 31 December 2003 to 31 May 2005
* Non-Military, Civilian Break for the period 1 June 2005 to 29 October 2008
9.  On 30 October 2008, he received an initial appointment as a Reserve commissioned officer in the ARNG in the rank of CPT.

10.  In connection with the processing of this case, an advisory opinion was received from the Chief, Personnel Policy Division, NGB, dated 26 November 2014.  The official recommended the applicant's withdrawal of Federal recognition date remain 31 May 2005.

11.  After reviewing the applicant's Official Military Personnel File (OMPF) the official found evidence that the applicant had performed duty during the period he contends he was in a civilian status.  Such evidence included:

* two Officer Evaluation Reports
* an Army Commendation Medal Certificate for the period 14 June to 
28 June 2003 for service performed during annual training
* transfer orders assigning him to a commander's position with the Michigan Regional Training Institute
* an email from the applicant requesting to change his status to the ING, dated 5 November 2003
* a MIARNG memorandum, dated 20 November 2014, which states that on 31 May 2005 the applicant was separated to civilian status by his own request per order number 154-035
* MIARNG confirmation that no action was taken on the applicant's request for resignation and the applicant decided to his transfer to the ING

12.  The applicant responded to the advisory opinion on11 December 2014.  He argued that his administrative release was not processed correctly.  He states that at no time did he decide or request to be transferred to the MIARNG ING.

13.  National Guard Regulation 635-100, paragraph 5a(3), in effect at the time, stated that an officer could tender a resignation through channels to the State Adjutant General.  The resignation could also be concurrent from the Army National Guard and Reserve of the Army for officers without a remaining service obligation.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he submitted his resignation from the MIARNG on 
18 November 2002 and that he was on a civilian break from that time until his appointment in the ARNG on 30 October 2008.  He argues that during this period he did not perform any military duties.  However, his OMPF contains evidence that clearly shows he did perform limited duties.

2.  Further, by his own admission he never received confirmation that his resignation request was approved.  The MIARNG stated that no action was taken on his request.  The evidence of record shows that orders were published transferring him to the ING on 31 December 2003 and subsequent orders were published withdrawing his Federal recognition from the ARNG effective 31 May 2005.  The preponderance of the evidence shows the applicant performed limited duty during the period he contends he was on civilian break; therefore, his withdrawal from Federal recognition date does not appear to be in error.

3.  In view of the foregoing, his 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)                                         AR20140005307





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ABCMR Record of Proceedings (cont)                                         AR20140005307



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