IN THE CASE OF:  	  

		BOARD DATE:  14 July 2015	  

		DOCKET NUMBER:  AR20140014117 


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:

	a.  an adjustment of his mandatory removal date (MRD);

	b.  restoration to the Reserve Active Status List (RASL);

	c.  consideration for promotion to colonel (COL)/O-6 by a special selection board (SSB); and

	d.  a personal appearance before the Board.

2.  The applicant states:

	a.  His MRD was miscalculated (4 years too early); therefore, he was not eligible for the "July 2011 Army Reserve Non-AGR [Active Guard Reserve] Promotion Selection Board" for COL.

	b.  He was prematurely transferred to the Retired Reserve in October 2011.

	c.  The U.S. Army Human Resources Command (HRC) erroneously counted 4 years of his educational delay as years of service toward his MRD.

	d.  On 20 July 1983, he was commissioned as a second lieutenant under the Guaranteed Reserve Forces Duty (GRFD) Reserve Officers' Training Corps (ROTC) scholarship while still an undergraduate.  In 1984, the U.S. Army Reserve (USAR) Personnel Center (ARPERCEN) granted him an educational delay, renewed annually through 1988, excusing him from Reserve duty while he attended law school.  In his educational delay contract and renewals, he agreed to any accessioning branch decision made by ARPERCEN upon graduating from law school.  ARPERCEN assigned him to the Military Intelligence (MI) branch.

	e.  The premature MRD denied him the “promised benefits of delay, promotion[,] and 4 years of service.”

	f.  HRC denied his request to correct or extend his MRD on the basis of his previously-granted educational delay.

3.  In a 10-page memorandum to the Board, the applicant states, in effect:

	a.  The USAR failed to recalculate his MRD to a later date during the period he was in law school and his assignment as a postgraduate judicial law clerk (1984-1988).  He was in the educational delay program at the time.  Subsequently, the best needs of the Army caused him to serve in the MI Branch.  There is no regulatory or statutory basis to count against his time in service, the time spent in the educational delay program.  In total, 4 years were added to his time in service, mischaracterizing the period when accrual of time in service is suspended.

	b.  He was the recipient of a GRFD ROTC scholarship in 1981.  In return for 2 years of tuition, books, and fees paid for by the Army, he promised to perform 8 years of service in the USAR or Army National Guard (ARNG).  He was also required to join the Simultaneous Membership Program and drill (perform inactive duty training) with a local ARNG unit while he was an ROTC cadet.

	c.  He was commissioned as a second lieutenant in July 1983.  He continued to drill with the Vermont ARNG.  In 1984, he was admitted to law school.  He applied to ARPERCEN for permission to delay his entry on active duty for training and postpone accessioning and attendance at a branch officer basic course (OBC) until he completed law school.  In August 1984, ARPERCEN approved his educational delay.  He applied for and received annual renewals of the delay in 1985 and 1986.  As he neared law school graduation, he was hired to serve as a judicial law clerk for the period 1987 to 1988 in the U.S. District Court for the Western District of Arkansas.  He applied for a 1-year extension of his educational delay which ARPERCEN granted in December 1986.  His educational delay period ended in September 1988.

	d.  He did not perform drills with the USAR or ARNG while he was in an educational delay status.  ARPERCEN had "stopped the clock" for him and those years would not count against his time in service under his prior GRFD scholarship contract.  Had he known the years would be counted toward his MRD, he would have sought assignment to a local troop program unit to drill and to maintain good years of service toward time in grade and retirement points.  Because those delay years would not count against him, the educational delay permitted him to focus entirely on law school and his clerkship before resuming his military career.  In July 1986, ARPERCEN notified him that he had been promoted to first lieutenant even though he had not been drilling or serving actively in a Reserve Component for the prior 2 years.

	e.  As he approached the end of his educational delay period, he notified ARPERCEN that he would soon be ready for branch accessioning and scheduling of his OBC.  While awaiting orders to attend OBC, he began his civilian legal career with a law firm in New York, NY, and then took a leave of absence from that job.  He graduated first in his OBC class as the distinguished graduate in December 1989.

	f.  He continued in active Reserve service to complete his 8-year scholarship obligation and beyond.  He completed the Civil Affairs Officer Advanced Course and he was promoted to captain.  He continued his military education and attained the rank of major.  He completed the Command and General Staff Course and was selected for promotion to lieutenant colonel (LTC).

	g.  Throughout his Reserve career he was diligent in attending drills and military schools, not only to progress in education and rank, but also to continue accruing retirement points sufficient for qualifying years for Reserve retirement.  He failed to attain a qualifying retirement year during each of the 4 years from 1984 to 1988 when he was in an educational delay status.  He did not drill or accrue any retirement points other than for membership because his educational delay status meant that such years would not factor into his overall service calculation.

	h.  He had his first consideration by the 2010 USAR Army Promotion List Selection Board for COL which did not select him.  While preparing his promotion packet for the next year, he discovered that HRC had miscalculated his MRD and HRC had therefore deemed him ineligible for consideration by the 2011 COL promotion selection board.  He sought assistance from MI branch managers at HRC to correct his records.  HRC denied his request to restore the 4-year educational delay period to his MRD.  As an alternative, he applied for extension of his service time with written endorsement and support of the Deputy Commander of U.S. Special Operations Command.  Although HRC forwarded the request with a favorable recommendation, the Department of the Army G-1 denied the request and directed his immediate transfer to the Retired Reserve.  That transfer took effect on 3 October 2011.

	i.  Denial of his request to correct and extend his MRD to properly reflect his 4 years without drilling performance while he was in an educational delay status is a manifest injustice.  He did not drill in a troop program unit during the 4-year delay with the knowledge that those years would not count against his time in service.  As a result, he was not as far along in his career progression at the end of that delay period and he had not accumulated the full number of qualifying retirement years and total retirement points as if he had drilled continually throughout those 4 years.  The erroneous MRD calculation denies him the opportunity to earn pay for continuous active Reserve service in the next 4 years (6 years if he should be promoted to COL and at a higher rate of pay).  Similarly, his anticipated Reserve retired pay at age 60 in March 2023 will be less than it would be had he accrued more retirement points in an additional 4 to 6 years of service (and even more if it were calculated on the basis of highest rank achieved as COL, rather than LTC).

	j.  He kept his end of the bargain with the Army by completing his graduate education, accepting the branch accessioning decision of ARPERCEN, resuming active Reserve service for the obligated 8 years, and continuing active service in different branches according to the needs of the Army until he was "involuntarily" transferred to the Retired Reserve.  He attained the highest level of military education, volunteered for wartime active duty tours, maintained his security clearances, and branch qualifications, and was selected for and graduated from the Army War College.

	k.  His reinstatement benefits the best interests of the Army and USAR.  Reinstatement preserves and makes the best use of the government's investments of considerable time and money that went into his training and qualification for multiple branches, including MI, Civil Affairs, and Psychological Operations; military training and schools; airborne and jumpmaster schools; Combined Arms and Services Staff School; Command and General Staff College; continued language proficiency qualification in two foreign languages; investigation and reinvestigation for his Top Secret and Special Compartmented Information security clearances, as well as code-word program access; Senior Service College at the Army War College conferring Military Educational Level 1; and many years of experience in the interagency process and working the whole-of-government approach to contemporary real world special operations.

	l.  If returned to the RASL, he will not exceed the maximum age limit before expiration of a corrected MRD.  He will remain eligible to serve under the new MRD before reaching his 60th birthday in March 2023.
	m.  Redressing this injustice requires no retroactive commands, back payments, or reversal of past record evaluations.  The Board can correct this injustice by prospective order, restoring him to the RASL, and permitting him to resume and continue service at his prior grade and seniority until a new MRD date to be calculated with full benefit of the future service years he is owed and to be credited for his prior educational delay.  Restoring him fully to the point where he left active service also means completing the interrupted promotion selection process scheduled in July 2011 by submitting his promotion file for review by an SSB for promotion to COL and applying the criteria and standards then in effect for 2011 for selection.

4.  The applicant provides 18 attachments outlined in page 11 of his memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 26 March 1963.  Having prior enlisted service in the ARNG as a cadet in the ROTC Program from 11 November 1981 to 19 July 1983, he was appointed in the ARNG as a second lieutenant on 20 July 1983.

2.  Records show the applicant's request for an educational delay from June 1984 to June 1987 to attend law school was approved.

3.  He was promoted to LTC effective 11 January 2005.

4.  In January 2009, he received notification of his eligibility for retired pay at age 60 (20 year letter).

5.  In July 2011, he submitted a request to HRC to extend his MRD.  He requested correction of his MRD to account for 4 years of approved educational delay from 1984 to 1988.  The corrected MRD would be August 2015.

6.  He provided a memorandum from the Chief, Officer Division, Department of the Army Office of the Deputy Chief of Staff, G-1, to HRC, dated 30 September 2011, which states:

* the request to retain the applicant beyond his MRD was returned without action
* the applicant reached his MRD on 1 August 2011 and must be transferred to the Retired Reserve or discharged as soon as possible
* there is no other legal authority for him to remain on the RASL

7.  On 3 October 2011, he was assigned to the Retired Reserve in the rank of LTC due to completion of the maximum authorized years of service.

8.  His USAR Chronological Statement of Retirement Points, dated 12 May 2015, shows his USAR and ARNG service.  This statement does not show a break in service.

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Leader Development Division, HRC, dated 15 September 2014.  HRC reviewed the application and determined no corrective action was required.  The opinion stated:

	a.  The applicant requested an educational delay for the years 1984-1988 in order to obtain his law degree.

	b.  He was appointed after completion to the MI branch.

	c.  In accordance with Title 10, U.S. Code, section 14706(a)(3), a Reserve officer's years of service include all service of the officer as a commissioned officer of a Uniformed Service other than service after appointment as a commissioned officer of a Reserve Component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that result from such a degree.

10.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded with a 10-page petition and stated, in effect:

	a.  HRC advises that Title 10, U.S. Code, section 14706(a)(3), precludes the Board from granting the relief requested.  HRC is mistaken because:  (1) HRC cites a version that was enacted and took effect in 1999 with no retroactive effect on his educational delay that was granted in 1984 and renewed through 1987; and (2) even if the amended statute were to apply to his case, the Supreme Court precedent in United States versus Winstar Corporation, volume 518, U.S. Report, page 839 (1996), bars the result advocated by HRC in that Congress may not, by enacting a new statute or amendment, breach an established agreement of this type by an individual with a Federal agency.

	b.  The 1999 Congressional amendment to Title 10 does not apply to the 1984-1987 educational delay agreement.

	c.  The Supreme Court's ruling in United States versus Winstar Corporation controls the 1999 change in law to preserve the benefits received in 1984-1988 under the educational delay agreement.

	d.  HRC should not be allowed a "second bite at the apple" and any further attempt at legal analysis should be barred as untimely and inconsistent with Title 10, U.S. Code, sections 1522 and 1556, and Title 32, Code of Federal Regulations, section 581.3.

	e.  His situation is unusual, perhaps an outlier case.  It is quite unlikely that any other USAR scholarship officer who went to law school under an educational delay agreement and graduated before 1999, but was not accessioned into the Judge Advocate General Corps is still eligible today and desiring to remain on the RASL.

	f.  The statute which HRC cites certainly applies to present and future law students who will be commissioned and this will not set future precedent as pertains to them.  But it remains manifestly unjust to deny him the benefit of the 4-year educational delay and to deny the Army of his continued and wiling service with the benefit of all the training and education the Army invested in him.

	g.  For all these reasons, the Board should consider the error and the manifest injustice by ordering his return to active service in the USAR, as well as review by an SSB for promotion to COL according to the criteria in effect and applied in July 2011.

11.  Army Regulation 140-10 (USAR – Assignments, Attachments, Details, and Transfers) states LTCs will be removed from an active status once they complete 28 years of commissioned service if they were under age 25 at initial appointment.

12.  Title 10, U.S. Code, section 14706 (Computation of Total Years of Service), currently states a Reserve officer's years of service include all service of the officer as a commissioned officer of a Uniformed Service other than the following:  (1) service as a warrant officer; (2) constructive service; or (3) service after appointment as a commissioned officer of a Reserve Component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.  An officer shall be considered to be in a professional specialty if the officer is appointed or assigned to the Medical Corps, Dental Corps, Veterinary Corps, Medical Service Corps, Nurse Corps, or Army Medical Specialists Corps, or is designated as a chaplain or judge advocate.  The statute was amended in 1999.  Prior to this amendment, the text read as follows:  "For the purpose of this chapter and chapter 1407 of this title, a reserve officer’s years of service include all service, other than constructive service, of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer)."

13.  Army Regulation 135-155 (ARNG and USAR – Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes policies and procedures for promotion of Reserve Component officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) governs operation of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an adjustment of his MRD and his time during an educational delay from 1984 to 1988 exception of this period from his commissioned time.  However, his MRD is established by law.

2.  The evidence shows he was granted an educational delay for the period 1984 to 1988 while he attended law school.

3.  The law states a Reserve officer's years of service include all service of the officer as a commissioned officer of a Uniformed Service other than service after appointment as a commissioned officer of a Reserve Component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.  Prior to being amended in 1999, the governing statute stated a Reserve officer’s years of service include all service, other than constructive service, of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer).

4.  Since he was appointed to the MI branch after his graduation from law school, all of his commissioned time counts toward determining when he will complete 28 years of commissioned service.  His MRD was established as 1 August 2011.  As such, he provided insufficient evidence/argument to show his MRD should be adjusted.

5.  His request to be restored to the RASL was noted.  However, there is no legal authority for him to remain on the RASL.  He provided insufficient evidence to show he is entitled to restoration to the RASL.

6.  His request for promotion consideration to COL by an SSB was carefully considered.  However, there is no evidence of material error.  He provided insufficient evidence to show he should be considered for promotion to COL by an SSB.

7.  His request for a personal appearance hearing before the ABCMR was also carefully considered.  However, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision.

8.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140014117



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ABCMR Record of Proceedings (cont)                                         AR20140014117



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