IN THE CASE OF:  

		BOARD DATE:  16 June 2015	  

		DOCKET NUMBER:  AR20140019115 


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 five deployments as a Department of the Army (DA) civilian be recognized as active duty military service
* the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) and/or DD Form 215 (Correction to DD Form 214) reflecting his service and all associated awards and decorations

2.  The applicant states:

* he served in five combat deployments with the Army and his service was coded inappropriately as a Department of Defense (DOD) civilian contractor
* his combat deployments in Iraq and Afghanistan were active duty service with the Army
* he performed the exact duties of Army personnel he was embedded with; he held the rank of major (MAJ) and wore the Army uniform
* he commanded Soldiers, went on combat patrols with Soldiers, and was involved in direct combat
* he was paid combat and hazardous duty pay and he was held accountable to Army regulations and the Uniform Code of Military Justice (UCMJ)



3.  The applicant provides:

* Standard Form (SF) 50 (Request for Personnel Action)
* Certificate of Secretary of Defense Medal for Global War on Terrorism
* National Atlantic Treaty Organization (NATO) Medal Certificate
* Certificate of Appreciation for support of Operation Iraqi Freedom
* General officer coin and letter of appreciation
* Certificate of Achievement
* Citation from the U.S. Embassy in Iraq
* Photographs of various medals
* Commander's Award for Civilian Service Certificate
* Three Achievement Medal for Civilian Service Certificates
* Three Civilian Combat Service Pin Certificates
* Multiple photographs of Soldiers in combat 
* Multiple pre-deployment certificates
* Multiple course completion certificates
* Pre-deployment Health Assessment
* Multiple pay history documents

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army (RA) and the Army National Guard, the applicant was appointed as a Reserve commissioned officer of the Army with concurrent call to active duty and executed an oath of office on 31 May 1991.  

2.  He completed the Infantry Officer Basic Course, served in a variety of assignments, and he was advanced to captain on 1 June 1995.  

3.  He was honorably released from active duty on 13 December 1998 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was issued a DD Form 214 that captured his active service from 31 May 1991 to 13 December 1998. 

4.  Following his release from active duty, he was considered for promotion to MAJ by the March 2002 and March 2003 Reserve Component Selection Boards (RCSB); however, he was not selected by either board.  

   a.  On 16 July 2002, HRC notified him that he was considered by the RCSB that convened on 4 March 2002 but he was not selected for promotion; selection boards do not record the reason for non-selection; if he remained eligible, he would be considered for promotion the following year.
   b.  On 7 August 2003, HRC notified him that he was considered by the RCSB that convened on 3 March 2003 but he was not selected for promotion; selection boards do not record the reason for non-selection; he must be discharged in accordance with Title 10, U.S. Code, section 14513 no later than 1 February 2004.

5.  On 19 August 2003, HRC published Orders D-08-330705 honorably discharging him from the USAR effective 1 February 2004.  

6.  There is no indication in his records he enlisted or was reappointed in any component of the Armed Forces, scrolled, or served on active duty, following his discharge from the USAR in February 2004.  

7.  According to the Office of Personnel Management, the applicant has been a DA Civilian Employee since 2001.  He continues to serve as a General Schedule employee in the Corps of Engineers.  

8.  He provides multiple documents in the form of certificates of achievement, certificates of training, coins, letters of appreciations, award certificates, pay records, and several photographs that show he served in Iraq and Afghanistan on multiple occasions as a DA civilian employee.  

9.  Title 10, U.S. Code, section 14505 (Effect of failure of selection for promotion: reserve captains of the Army, Air Force, and Marine Corps and reserve lieutenants of the Navy) states unless retained as provided in section 12646 or 12686 of this title, a captain on the reserve active-status list of the Army, Air Force, or Marine Corps or a lieutenant on the reserve active-status list of the Navy who has failed selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade and who has not been selected for continuation on the reserve active-status list under section 14701 of this title, shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the president approves the report of the board which considered the officer for the second time.

10.  Title 10, U.S. Code, section 14513 (Failure of selection for promotion) states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections:

* be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force
* be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve
* if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment

11.  Executive Order 13358 (Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces), dated 30 September 2004, states the White House delegated the authority of the President to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized.

12.  Title 10, U.S. Code, section 1552, states the Army Board for Correction of Military Records (ABCMR) acts on behalf of the Secretary of the Army in correcting Army records.  This statute provides that this Board has no authority to correct a determination reserved under law to the Secretary of the Defense.

13.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes the policies and procedures for the appointment of commissioned officers in the USAR.  

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  A DD Form 214 will be prepared for each Soldier as indicated:

	a.  Active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration of term of service), physical disability separation, or punitive discharge under the UCMJ;

	b.  Reserve Component (RC) Soldiers completing 90 days or more of continuous active duty training (ADT), Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service. Also, RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty;

	c.  Army National Guard (ARNG) and USAR Soldiers mobilized under Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into Federal service under Title 10, U.S. Code, chapter 15 or section 12406, regardless of length of mobilization, when transitioned from active duty.  A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision.  He or she will only receive a DD Form 220 (Active Duty Report); and

	d.  RC Soldiers completing initial ADT that results in the award of an MOS even when the active duty period was less than 90 days.  This includes completion of advanced individual training under the ARNG of the U.S. Army Alternate Training Program or USAR Split Training Program.

15.  Department of the Army Pamphlet 690-47 (DA Civilian Employee Deployment Guide) states: 

	a.  An Emergency Essential (EE) employee is a civilian employee who occupies an EE position and has signed a "DOD Civilian Employee Overseas EE Position Agreement" (DD Form 2365).  An EE position is a civilian position located overseas or one that would be transferred overseas during a crisis situation.  The position is required to ensure the success of combat operations or to support combat essential systems subsequent to mobilization or an evacuation order.  The position cannot be converted to a military position because it requires uninterrupted performance to provide immediate and continuing support for combat operations or support maintenance and repair of combat essential system.

	b.  The deploying civilian will be requested to execute an EE agreement.  All civilian employees deploying to combat operations/crisis situations are considered EE regardless of volunteer status or the signing of the EE position agreement.  The employee will be in an EE status for the duration of the assignment. 

	c.  Command and control relationships often change to meet the needs of particular deployments.  Therefore, what may be the appropriate command and control structure during peacetime or at the employee's normal place of work may need to be changed during a crisis situation or a temporary duty assignment.  During a crisis situation or deployment, civilian employees are under the direct command and control of the on-site supervisory chain. Therefore, the on-site supervisory chain will perform the normal supervisory functions for example, those related to performance evaluations, task assignments and instructions, and initiating and effecting recognition and disciplinary actions. 

	d.  Under certain conditions Army civilians may be issued weapons for their personal self defense, subject to military regulations regarding training in proper use and safe handling of firearms.  Acceptance of a sidearm is voluntary by the EE civilian.  Authority to carry a weapon is also contingent upon the approval and guidance of the supported Combatant/Major Army Command Commander.  The Army component commander must make the decision early in the operation as to whether or not civilians may be armed.  Familiarization training will be conducted. Organization clothing and individual equipment will be issued to EE personnel and other civilians who may be deployed in support of military operations. 

	e.  Civilian employees are subject to the normal administrative disciplinary procedures.  Civilian employees are subject to the chain of command, and disciplinary procedures are the responsibility of the on-site supervisor in accordance with the Uniform Code of Military Justice.  Civilian employees serving at or assigned to foreign areas designated for danger pay by the Secretary of State because of civil insurrection, civil war, terrorism or wartime conditions which threaten physical harm or imminent danger to the health or well being of a majority of employees stationed or detailed to that area will receive a danger pay allowance. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 31 May 1991 to 13 December 1998. He was issued a DD Form 214 that captured this period of service.  Following his release from active duty and transfer to the USAR, he was non-selected (twice) for promotion to the next higher grade.  As required by law and regulation, the applicant was honorably discharged from the USAR on 1 February 2004. 

2.  Following his discharge, the applicant deployed to Iraq and/or Afghanistan on multiple occasions in his capacity as a DA civilian employee.  He did not do so in 
a military status because he did not have one.  There is no evidence he enlisted or was appointed as a commissioned or warrant officer in any branch of the Armed Forces.  Likewise, there is no evidence he was accessed into the strength of any component of the Armed Forces.  

3.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Because the applicant served as a deployed DA civilian employee, there is no basis for issuing him a DD Form 214 or a DD Form 215.  The DD Form 214 is not issued to DA civilian employees.

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)                                         AR20140019115



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ABCMR Record of Proceedings (cont)                                         AR20140019115



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