IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140007095 


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 records to show his entitlement to payment for the unexpired period of service in accordance with Title 10, U.S. Code (USC), section 12312(b).  

2.  The applicant states he applied for an active duty tour through Personnel Force Innovation (PFI) based out of Indianapolis, IN, in 2011.  The position he applied for was Access Control Officer for the Defense Finance and Accounting Service (DFAS), Columbus, OH.  During the tour, his Federal civilian supervisor created a hostile work environment for him due to complaints he made as he had him perform duties outside the scope of his assigned duties as well as going against a permanent profile he had.  After numerous injuries, he accused him of forging a “DA Form 795” (unknown form).  After showing him proof that he did not forge it he "fired" him and had him escorted out of the building.  While his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) does show an “Honorable” characterization of service, the manner in which he was released from active duty blocked him from obtaining entitlements per Title 10, U.S. Code (USC), section 12312(b).  Due to the possible illegal nature of his separation, his status in the Army was unresolved until 28 March 2013.  

3.  The applicant provides:

* DD Form 214, ending on 20 October 2013
* Mobilization, amendment, and separation orders 


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 June 1998 and he held military occupational specialty (MOS) 95B (Military Police (MP)).  He attained the rank/grade of private first class (PFC)/E-3.

2.  He retired by reason of disability on 12 June 2003 and he was placed on the temporary disability retired list (TDRL) in his retired rank/grade of PFC/E-3.  The facts and circumstances surrounding his disability processing are not available for review with this case. 

3.  His DD Form 214 shows he completed 1 year, 11 months, and 27 days of active service during this period.  

4.  He enlisted in the U.S. Army Reserve (USAR) for a period of 6 years in the rank/grade of specialist (SPC)/E-4 on 11 December 2007.  He was assigned to the 814th MP Company, Arlington Heights, IL.  

5.  On 11 September 2008, he was reassigned to another USAR troop program unit (TPU) (Pre-mobilization Detachment, Atlanta, GA), for the purpose of mobilization.  Also on 11 September 2008, he was issued a DA Form 3349 (Physical Profile) for bilateral chronic ankle instability.  

6.  He entered active duty on 13 December 2008 but he was declared non-deployable due to a medical condition.  He was released from active duty on 30 December 2008. 

7.  On 8 December 2011, the U.S. Army Human Resources Command (HRC) published Orders A-12-127413 ordering him to active duty for operational support (ADOS) under the provisions of Title 10, USC, section 12301(d).  He was ordered to report to the U.S. Army Financial Management Command, Fort Benjamin Harrison, IN, on 12 December 2011.  The period of active duty was listed as 365 days ending on 10 December 2012 and the purpose was to serve as an access control officer at DFAS. 

8.  On 16 November 2012, HRC issued Orders A-12-220621 ordering him to ADOS under the provisions of Title 10, USC, section 12301(d).  He was ordered to report to the U.S. Army Financial Management Command, Fort Benjamin Harrison, IN, on 11 December 2012.  The period of active duty was listed as 365 days ending on 30 September 2013 and the purpose was to serve as an access control officer at DFAS. 

9.  On 11 September 2013, Headquarters, 88th Regional Support Command, Fort McCoy, WI, published Orders 13-254-00044 reassigning him to the USAR Control Group (Reinforcement) effective 6 October 2013 by reason of expiration of term of service. 

10.  On 20 September 2013, HRC published Orders A-09-313482 ordering him to ADOS under the provisions of Title 10, USC, section 12301(d).  He was ordered to report to DFAS-Cleveland on 1 October 2013.  The period of active duty was listed as 365 days ending on 30 September 2014 and the purpose was to serve as an access control officer at DFAS. 

11.  On 16 October 2013, HRC amended Orders A-09-313482 to show the period of active duty as 20 days ending on 20 October 2013. 

12.  He was honorably released from active duty on 20 October 2013.  His 
DD Form 214 shows he was released from active duty in accordance with chapter 4 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of completion of his required service. 

13.  Title 10, USC, section 12301(d) states at any time an authority designated by the Secretary concerned may order a member of a Reserve Component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.

14.  Title 10, USC, section 12311 (Active duty agreements) states: 

	a.  To provide definite terms of active duty (other than for training) for Reserves with their consent, the Secretary concerned may make a standard written agreement with any member of a reserve component under his jurisdiction requiring the member to serve for a period of active duty (other than for training) of not more than five years.  When such an agreement expires, a new one may be made.  This subsection does not apply in time of war declared by Congress.

	b.  An agreement may not be made under subsection (a) unless the specified period of duty is at least 12 months longer than any period of active duty that the member is otherwise required to perform.

	c.  Agreements made under subsection (a) shall be uniform so far as practicable and are subject to such standards and policies as may be prescribed by the Secretary of Defense for the armed forces under his jurisdiction or by the Secretary of Homeland Security for the Coast Guard when the Coast Guard is not operating as a service in the Navy.

	d.  If an agreement made under subsection (a) expires during a war or during a national emergency declared by Congress or the President after 1 January 1953, the Reserve concerned may be kept on active duty, without his consent, as otherwise prescribed by law.

15.  Title 10, USC, section 12312 (Active duty agreements, release from duty) states in: 

	a.  Section 12312(a), each agreement made under section 12311(a) of this title shall provide that the member may not be released from active duty without his consent during the period of the agreement (1) because of a reduction in the actual personnel strength of the armed force concerned, unless the release is in accordance with the recommendation of a board of officers appointed by an authority designated by the Secretary concerned to determine the members to be released from active duty under regulations prescribed by the Secretary; or (2) for any other reason, without an opportunity to be heard by a board of officers before the release, unless he is:

		(1)  Dismissed or discharged under the sentence of a court-martial; 

		(2)  Released because of an unexplained absence without leave for at least three months; or 

		(3)  Released because he is convicted and sentenced to confinement in a Federal or State penitentiary or correctional institution and the sentence has become final; or 

		(4)  Released because he has been considered at least twice and has not been recommended for promotion to the next higher grade or because he is considered as having failed of selection for promotion to the next higher grade and has not been recommended for promotion to that grade, under conditions that would require the release or separation of a reserve officer who is not serving under such agreement.

	b.  Section 12312(b), a member who is released from active duty without his consent before the end of his agreement made under section 12311(a) of this title is entitled to an amount computed by multiplying the number of years and fractions of a year of his unexpired period of service under the agreement by the sum of one month’s basic pay, special pay, and allowances to which he is entitled on the day of his release.  The amount to which a member is entitled under this subsection is in addition to any pay and allowances to which he is otherwise entitled. For the purposes of this subsection, a fraction of a month of 15 days or more is counted as a whole month, and a fraction of a month of less than 15 days is disregarded.  This subsection does not apply to a member if he is:

		(1)  Released for a reason described in subsection (a)(2)(A)–(C); 

		(2)  Released because of a physical disability resulting from his intentional misconduct or willful neglect;

		(3)  Eligible for retired pay, separation pay, or severance pay under another provision of law;

		(4)  Placed on a temporary disability retired list; or 

		(5)  Released to accept an appointment, or to be enlisted, in a regular component of an armed force.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty for operational support under Title 10, USC, section 12301d (consensual), for 365 days on 12 December 2011 through 10 December 2012.  He was again ordered to active duty under Title 10, USC, section 12301(d) for 365 days on 11 December 2012 through 30 September 2013.  He was honorably released from active duty on 20 October 2013, 1 month and 21 days short of 2 years, by reason of completion of required active service, i.e., completion of the reason for his active service. 

2.  The provisions of Title 10, USC, section 13312 do not apply to the applicant.  They apply in cases of Soldiers ordered to active duty under section 12311(a) of this title.  The applicant was not ordered to active duty under section 12311(a).  There was no written agreement with the applicant requiring him to serve for a period of active duty (other than for training) of not more than five years.

3.  The applicant was released from active duty under the appropriate authority (chapter 4, Army Regulation 635-200) by reason of completion of his required service.  There is no reason to change that.  He is not entitled to 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 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)                                         AR20140007095



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ABCMR Record of Proceedings (cont)                                         AR20140007095



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