IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140016406 


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 his mandatory removal date (MRD) be adjusted to 1 March 2019 vice 1 August 2017.

2.  The applicant states:

	a.  His MRD should be adjusted to account for his break in service from 19 January to 17 August 1993 (i.e. 16 August 1993) of 210 days, and for an approved resignation from 27 October 2004 to 3 November 2005 (i.e. 2 November 2005) of 372 days.  He submitted a request for correction of his MRD to the U.S. Army Human Resources Command (HRC) but it was disapproved.  Ms. AD, Officer Personnel Management Directorate (OPMD), recommended he continue to seek resolution through the Army Review Boards Agency (ARBA).

	b.  In both service break instances, and in order to not be liable for call up, he submitted the required requests and proper resignation letters to be removed from the Individual Ready Reserve (IRR) rolls.  At the time of his second service break, he was already in the IRR following his tour in Iraq.  He called HRC to get off the IRR call up roster to allow for proper reintegration after two mobilizations and deployments.  He was advised that once conditions were favorable to continue his service, he would have to submit a reappointment package and he was fine with the situation. 

	c.  In November 2005, when the time came to continue his service he was told that HRC never adjusted his current organization (CURORG) code to properly reflect his "fully out status."  He has included the document from his interactive Personnel Electronic Records Management System (iPERMS) file with the HRC concur stamp. 

	d.  He believes this error falls into a process failure with HRC.  During the first service break, he was in the Illinois Army National Guard (ILARNG) and submitted a letter of resignation as he was advised to do with the intention of also getting off the call up roles. Once he was able to continue his service, he had to go to the ILARNG State Headquarters, Camp Lincoln, Springfield, IL, to complete a reappointment package and get sworn in.  This is another instance of an administrative error and he respectfully requests the Board adjust his MRD accordingly.

3.  The applicant provides:

* three memoranda, dated 12 January 1993, 26 October 2004, and 28 April 2014
* three orders, dated 19 January 1993, 17 August 1993, and 3 November 2005
* three pages of email, dated between 1 May and 13 June 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on XX May 1968.  Having had prior enlisted service in the ILARNG, he was appointed as a Reserve second lieutenant (2LT) in the ILARNG on 8 July 1989 at the age of 21.  He was assigned to the 3rd Battalion, 130th Infantry Regiment, Frankfort, IL.  His MRD was 1 August 2017.

2.  Special Orders (SO) Number 194AR, dated 10 October 1989, issued by the National Guard Bureau (NGB), granted him Federal Recognition of his initial appointment as a 2LT in the ILARNG effective 8 July 1989.

3.  On 7 July 1992, he was promoted the rank/grade of first lieutenant (1LT)/O-2. SO Number 73AR, dated 17 June 1992, issued by the NGB, granted him Federal Recognition for his appointment as a 1LT in the ILARNG effective 7 July 1992.

4.  On 12 January 1993, he submitted his resignation from the ARNG and as a Reserve of the Army.  In his request, he acknowledged that he understood that his separation was contingent upon acceptance by the Commander, Reserve Components Personnel and Administration Center (RCPAC). 

5.  His records contain:
	a.  Orders 11-58, dated 19 January 1993, issued by the Department of Military Affairs, State of IL, wherein it shows he was separated from the ARNG effective 25 January 1993 and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement (or IRR)) effective 26 January 1993.  This orders stated "Upon termination of Federal recognition officer becomes a member of the USAR under the provisions of Title 10, U.S. Code (USC) 3352(b)" emphasis added).

	b.  An NGB Form 22 (NGB - Report of Separation and Record of Service) he was issued for this period of service wherein it shows he entered the ILARNG on 8 July 1989 and was honorably released from the ARNG on 25 January 1993 and transferred to the USAR Control Group (Reinforcement). 

	c.  SO Number 34AR, dated 30 March 1993, issued by the NGB, wherein it shows his Federal Recognition as a 1LT in the ARNG was withdrawn effective 25 January 1993 and he was transferred to the USAR.

6.  The applicant subsequently applied for appointment in the ILARNG.  On 9 August 1993, he completed an NGB Form 62 (Application for Federal Recognition as an ARNG Officer or Warrant Officer (WO) and Appointment as a Reserve Commissioned Officer or WO of the Army in the ARNG of the United States).  This form shows the applicant, in part, made the following entries in:

* item 2m (Are you at present a member on any component of the Armed Forces?) - Yes, 1LT, USAR Control Group, inactive.
* item 2t (Record of All Military Service) - 25 January 1993 to Present, O-2, USAR

7.  Orders 58-50, dated 17 August 1993, issued by the Department of Military Affairs, State of IL, appointed him as a 1LT in the ILARNG effective 17 August 1993.  He was assigned to the 3rd Battalion, 130th Infantry Regiment, Mount Vernon, IL.

8.  He was honorably released from the ILARNG on 30 September 1997 in the rank of 1LT.  The NGB Form 22 he was issued for this period of service shows he entered the ILARNG on 17 August 1993 and was honorably released from the ARNG on 30 September 1997 and transferred to the USAR Control Group (Reinforcement). 

9.  At his request, he was released from the USAR Control Group and on 16 April 2001, he was assigned to the USAR Troop Program Unit (TPU), 528th Transportation Detachment, Perrine, FL.

10.  He served on active duty as a member of his USAR unit in support of Operation Enduring Freedom (OEF) from 25 November 2002 to 9 November 2003.  He was promoted to the rank/grade of captain (CPT)/O-3 on 14 April 2003.  

11.  On 5 February 2004, he contacted HRC to inquire about volunteering for active duty service in support of Operation Iraqi Freedom (OIF).  He was advised that since he was a TPU Soldier, he had to submit his request through the U.S. Army Reserve Command (USARC).  He was subsequently reassigned from the 528th Transportation Detachment to the USAR Control Group.

12.  He was ordered to active duty as a member of the USAR in support of OIF and he entered active duty on 25 April 2004.  He was honorably released from active duty on 14 October 2004 in the rank of CPT and he was transferred to the USAR Control Group.

13.  On 26 October 2004, he contacted HRC to inquire about resigning his commission and HRC mailed him the required document.  He provides and his record contains, a memorandum from the applicant, dated 26 October 2004, to the USAR Personnel Command (AR-PERSCOM), wherein he stated he tendered his unqualified resignation as a Reserve officer in the USAR under the provisions of Army Regulation 135-175 (ARNG and USAR Separation of Officers), chapter 6, section III.  He understood if his resignation was accepted, he was entitled to an honorable separation and would be furnished an Honorable Discharge Certificate.  This is a signature at the bottom of the form, dated 27 October 2004, and the concurrence block is circled.  It is unclear if the signature was an individual from his chain of command or HRC.

14.  The applicant's record is void of orders or any evidence that shows his resignation was accepted and processed by AR-PERSCOM or that shows he was ever issued orders discharging him from the USAR Control Group.

15.  A review of the applicant's iPERMS Soldier Management System (SMS) history file shows that:

	a.  On 27 October 2004, a remark was annotated at HRC that the applicant's unqualified resignation was received and forwarded on 5 November 2004 for review and processing.  Service member requested to be discharged; waiting for Melisa to approve the order.

	b.  On 20 December 2004, his records were reviewed for IRR screening.  An ARPC Form 3725-E (Army Reserve Status and Address Verification) was mailed to the applicant.  
	c.  On 3 January 2005, the applicant updated his address, phone number, and/or email address through Army Knowledge Online (AKO).

	d.  On 14 April 2005, a Standard Form 312 (Classified Information Nondisclosure Agreement) was mailed to the applicant.

	e.  On 2 October 2005, the applicant updated his address, phone number, and/or email address through AKO.

	f.  On 3 October 2005, the applicant contacted HRC to verify his status.  The HRC representative stated the [resignation] letter was forwarded to the command but she was not sure if the action was completed.  He stated he wished to remain in the USAR in the individual mobilization augmentation (IMA) program or in a TPU.  A note was made to not resign the applicant as he did not want to resign.

	g.  On 2 November 2005, he verified his address, phone number, and/or email address through AKO.

16.  Orders T-11-514535, dated 3 November 2005, issued by HRC, ordered the applicant to active duty for training (ADT) for 30 days with a report date of 3 November 2005 to MacDill Air Force Base, Tampa, for SOCOM support.

17.  He continued to serve as a Reserve officer in the USAR in both an active and inactive status and was promoted to the rank/grade of major (MAJ)/O-4 on 9 September 2009.

18.  On or about 26 January 2012, by memorandum, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  

19.  On 1 May 2014, the applicant submitted a request to HRC requesting his MRD be adjusted to account for his breaks in service from 19 January to 16 August 1993 and from 27 October 2003 to 2 November 2005.  HRC denied his request and advised him he may seek resolution through ARBA.

20.  In the processing of this case, an advisory opinion, dated 15 October 2014, was received from the Chief, Leader Development Division, HRC.  The advisory official recommended disapproval of the applicant's request for adjustment of his MRD due to breaks in service and stated the applicant was commissioned as a Reserve officer on 8 July 1989.  Although he submitted letter of resignation on 12 January 1993 and 26 October 2004, he was reappointed in the ARNG on 17 August 1993 and subsequently withdrew the 26 October 2004 request; discharge orders were never published.  Both occurrences resulted in the applicant being placed in the IRR; therefore, he did not incur any breaks in service and there is no basis for an adjustment to his MRD. 

21.  In a response to the advisory opinion, dated 12 November 2014, the applicant stated, in part:

	a.  Regarding HRC's statement that "he was reappointed in the ARNG on 17 August 1993," he believed this validated his assertion that as far as the ARNG, he was considered out of the service and was required to submit a reappointment package to continue his service.  He also believes the statement that "…and subsequently withdrew the 26 October 2004 request," is incorrect as a review of the SMS shows he had no contact with HRC between the submission of his resignation on 26 October 2004 and his contact on 3 November 2005 to reactivate his service.  It should be noted that in October 2004, he was already in the IRR.  

	b.  In November 2005, he was prepared to submit a reappointment packet.  However, he was informed by HRC that his 2004 resignation, although approved, had never been processed.  Instead of submitting an application for reappointment, she could go ahead and process his ADT order request with SOCOM.  She further relayed that she needed to change his current organization (CURORG) code to allow the orders request to process.  He understood the CURORG code was mistakenly registering that he was in a mobilization status as a result of his current tour in Iraq.  For a full calendar year, he believed he was out of the Army and his last conversation with HRC in October 2004 was that his resignation was approved.  The incorrect accounting for this period of service was due to administrative errors on the part of HRC.

	c.  He had a third period of service when he was not actively serving in a drilling unit but was a member of the IRR for about 42 months starting in September 1997.  During this period, he did not submit a resignation request; rather, he asked to be released to the IRR as he moving from IL to FL and wanted to keep his service options open with the Florida ARNG (FLARNG) while he was working to build his new civilian career.  In April 2001, he transferred to a USAR position in Perrine, FL.  He brings this up in an effort to draw a contrast in intent between two periods that are concerned in this case.  During those two periods, his intent was a break in service where he would not be liable for call-up. On both occasions, he explained his specific situations to the appropriate personnel sections and, as he was considered a "non-obligated" officer, the course of action recommended was that he should submit resignation letters in order to guarantee the required breaks.  

22.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer Reserve Soldiers.  It states, in part:

	a.  Unless concurrently discharged, Soldiers who are discharged from the ARNG remain Reserve of the Army Soldiers. 

	b.  For 1LTs, CPTs, MAJs, and lieutenant colonels, remove on the earlier of the following dates.  The MRD 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.

23.  Title 10, USC, section 3352(b), updated in 2014 under section 12213a, states under such regulations as the Secretary of the Army may prescribe, and with the consent of the governor or other appropriate authority of the State concerned, an officer of the ARNG may be transferred in grade to the USAR.  Section 12213b states unless discharged from his appointment as a Reserve, an officer of the ARNG whose Federal recognition as a member of the ARNG is withdrawn becomes a member of the USAR.  An officer who so becomes a member of the USAR ceases to be a member of the ARNG.

24.  In a Washington Post newspaper article, dated 11 May 2006, the author stated that, due to the ongoing operations in Iraq and Afghanistan and the USAR failing to meet recruiting goals, the USAR in an unpublicized policy first adopted in 2004 and strengthened in 2005, set new guidelines to curtail officers from voluntarily resigning their commission.  The article quoted a Reserve official as stating that the reason you don't discharge people during a critical shortage was for readiness and fiscal reasons; those affected included drilling Reservists and those in the IRR. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a Reserve 2LT in the ILARNG on 8 July 1989 when he was 21 years of age and by law his MRD was 1 August 2017.  Although he may have resigned his commission in the ARNG on 12 January 1993, in accordance with governing regulations upon withdrawal of his Federal recognition in the ARNG, he was appropriately transferred to the IRR.  

2.  Notwithstanding his contention that he was unaware of this transfer, his NGB Form 22 clearly stated he was transferred to the USAR Control Group and orders were issued by the NGB that also stated this.  In addition, as his Federal recognition had been withdrawn, he had to apply for reappointment in the ILARNG and when he completed the NGB Form 62 on 9 August 1993 he listed his military status at the time as USAR – inactive. 

2.  On 26 October 2004, while in the IRR, he submitted his unqualified resignation.  While the evidence of record shows the request was received and processed at HRC in October and November 2004, respectively, there is no evidence and the applicant has not provided any evidence that shows his resignation was approved or that he was ever advised it had been approved.  As he had previously resigned his commission in 1993, it is reasonable to presume he would have contacted HRC to verify why he had not received discharge orders from the USAR after he submitted his request.  

3.  On 3 October 2005, he called HRC to verify his status and was told he was still in the IRR.  It is presumed that had he made the request at that time his resignation would have been approved.  However, he requested his resignation be withdrawn and requested he be assigned to the SOCOM; HRC complied with his request.  He was subsequently promoted to MAJ and continued to serve in the USAR.

4.  He never challenged his assignment to the IRR between 2004 and 2005 until 2014.  It has now been almost 11 years since he submitted his resignation in 2004, and, at this late date, it is unclear as to the actual cause of the delay in approving his request.  However, the evidence clearly shows he did not incur a break in service between October 2004 and November 2005 and that he ultimately withdrew his request. 

5. In view of the foregoing, there is an insufficient evidentiary basis upon which 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 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)                                         AR20140016406





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ABCMR Record of Proceedings (cont)                                         AR20140016406



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