IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20150001599 


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: 

* the Board finds that he was improperly discharged from the U.S. Army Reserve (USAR) in 2007
* adjustment of his mandatory removal date (MRD) to reflect the breaks in service
* restoration of his highest rank achieved, lieutenant colonel (LTC), and that he be allowed to continue to serve in that capacity until mandatory retirement at age 60
* service credit in the rank of LTC retroactive to the date of his enlistment on 21 February 2014

2.  The applicant states he was wrongfully discharged on 16 September 2007 and subsequently placed in Current Organization (CURORG) Category "Y" (Archived) on 7 April 2008.  This was done without notification and with no orders published.  This was done in violation of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 7-6 (removal rule 6), and despite the fact that he had over 18 years of qualifying service (even though he was wrongfully credited with only 13 years at that time).  The U.S. Army Human Resources Command (HRC) has since acknowledged that his MRD should have been adjusted to at least 1 July 2010 and that the time since the discharge should be considered a break in service (thereby suspending his MRD).  Having been contacted by his Member of Congress, HRC then issued discharge orders on 27 January 2014 with an effective date of 1 June 2006.  While this cleared the way to allow him to continue service with the Nebraska Army National Guard (NEARNG), this did not correct the underlying problem and did not take into account either the recommended adjusted MRD or the break in service. 

	a.  In August 2012, after a job-related break in service (he retired from the FBI), he sought a troop program unit (TPU) position within the Army Reserve or ARNG.  FBI policy at the time did not allow special agents to be members of the Ready Reserve.  As a result, he had drilled for points only for several years, whenever possible.  His USAR rank at the time was LTC with a date of rank as 8 February 2001.  A review of his AHRC Form 249-E (Chronological Statement of Retirement Points) reflected 13 years, 2 months and 18 days.  This was incorrect.  In actual fact, he had completed over 18 "qualifying" years of service.  

	b.  On 23 August 2012, he sent a written request to HRC, Military Police (MP) Branch, to have his retirement points adjusted.  Because of his age, he could not proceed with rejoining the USAR or ARNG until the proper number of qualifying years was credited; otherwise, he could not get enough qualifying years to earn 20 qualifying years prior to his 60th birthday.  After several months and several revisions, on or about 18 March 2013 his AHRC Form 249-E was corrected to reflect 18 years, 2 months and 18 days of qualifying service.  After numerous contacts with HRC, on 26 July 2013 he was advised by Mrs. D--n H---er, Appointments Branch, HRC, that he could not resume service because he had been discharged on 16 September 2007 and placed in CURORG Category Y (Archived) on 7 April 2008.  According to Mrs. H---er, the reason noted for the discharge was: Voluntary:  Miscellaneous/General Reasons.   

	c.  He advised Mrs. H---er that he had never requested a discharge and he was not aware that it had been done.  She acknowledged that there was no record of such a request (for discharge) in his file.  She also noted that there was no record that notification had ever been made nor had any discharge orders ever been published justifying this action.  He was advised that this would be in violation of Army Regulation 140-10, paragraph 7-6 (removal rule 6).  He continued to pursue reinstatement of his commission but with no success.  He talked to many individuals at HRC but could not get any concrete answers to his question.  It was his contention that he had been erroneously discharged and that his MRD should have been adjusted to reflect the breaks in service.  

	d.  On 3 April 2013, he received an email from Major El---e J-----on, MP Branch, HRC who advised him that Chief Warrant Officer Four (CW4) Me---an Ha---d had advised her of the following:  "With the 4 year break in service between 2002 and 2006, his MRD should reflect 20100701.  Unfortunately, the system won't accept a date in the past.  The Personnel Automation Branch (PAB) will make a comment in SMS (HRC Soldier Management System) that his corrected MRD should reflect the 2010 date; which still puts him beyond MRD.  The reason the Active Component (AC) transferred him to CURORG ‘Y’ is unclear?  At this point recommend [Applicant] go through the Army Review Boards Agency (ARBA) to request correction to his military record.  Based on the reason for transfer from CURORG 1 to CURORG Y in 2007, the years between 2007 and 2013 may potentially be deemed a break in service."   

	e.  If his adjusted MRD should have been 1 July 2010 and he was discharged in 2007, this means he was improperly discharged prior to his MRD.  He also notes that he had another break in service from 21 May 1985 to 9 February 1990.  This is reflected on his AHRC Form 249-E.  This break in service should also be considered in adjusting his MRD which would have pushed it from 2010 to 2014 during the time that he was attempting to rejoin the USAR.

	f.  While all this was going on, the NEARNG indicated that they would accept him.  They advised that they would not be able to bring him back as a commissioned officer because of his discharge.  They would accept him if he was willing to enlist.  He was informed that he could continue to pursue getting his commission reinstated even after he enlisted.  Because of his age (now 56), he decided that he had to get his two qualifying years done while he still had the time; the fight to get his commission back was now in its second year.  It was then determined that he had never been officially discharged from the USAR. Therefore, he could not enlist in the ARNG (cannot be in both organizations simultaneously).  He contacted the Military Liaison Officer for his Member of Congress.  After the Senator's office contacted HRC on 27 January 2014, he received orders discharging him from the USAR effective 1 June 2006, the first day of the month after reaching his unadjusted MRD.  While this allowed him to enlist in the ARNG, it was still inaccurate and he should have been allowed to enter as a commissioned officer (in the rank of LTC).  

3.  The applicant provides:

* FBI Personnel Policy Unit 
* Letter from applicant to HRC
* Multiple emails from HRC-MP Branch
* SMS notes and/or entries
* Reissued discharge orders 
* DD Form 4 (Enlistment/Reenlistment Document)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 13 August 1957.  He would turn 60 years of age in August 2017.  He enlisted in the USAR (Reserve Officers' Training Program) on 30 August 1976.    
2.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 13 May 1978.  He was nearly 21 years of age.  He entered active duty on 13 May 1978.  He completed the MP Officer Basic Course and he was promoted to captain (CPT) on 1 December 1981.   

3.  He submitted an unqualified resignation in April 1982.  Accordingly, he was honorably released from active duty on 31 July 1982.  He was transferred to the USAR Control Group (Reinforcement). 

4.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 1 August 1982.  He was assigned to the 403rd MP Company, a Troop Program Unit of the USAR. 

5.  On 21 February 1985, he was reassigned from the USAR Control Group (Reinforcement) to the USAR Control Group (Standby) (Inactive). 

6.  On 7 June 1985, the U.S. Army Reserve Personnel Center, St. Louis, issued him an Appointment Memorandum appointing him as a Reserve commissioned officer of the Army, effective upon his acceptance, in the rank of CPT, MP branch. 

7.  It appears he remained inactive through 9 February 1989, a period of 3 years, 11 months, and 19 days, and transferred back to the USAR Control Group (Reinforcement).

8.  On 4 April 1991, he was reassigned from the USAR Control Group (Reinforcement) to the 5049th USAR Forces School, Omaha.  He then completed the MP Officer Advanced Course in August 1991.

9.  On 1 October 1993, he was transferred to the 439th MP Detachment, Omaha, and on 18 November 1993, he was promoted to major.  On 30 November 1994, he was reassigned from the 439th MP Detachment to the USAR Control Group (Reinforcement) due to employment conflict. 

10.  In or around December 1995, he was attached to the Army Personnel Center, Reserve Officers’ Training Corps Region, Fort Lewis, WA, with duty at the University of California, Los Angeles.  

11.  On 8 February 2001, he was promoted to LTC, and on 2 October 2001 he was reassigned from the USAR Control Group (Reinforcement) to the 6th Brigade, 80th Division, Owings Mills, MD.  However, on 1 October 2002, he was reassigned to the USAR Control Group (Reinforcement) for personal reasons. 

12.  On 9 April 2003, an official at HRC St. Louis Task Force Global Reach contacted several individuals, including the applicant, regarding current opportunities in the IRR.  The HRC official requested at the very least, as an IRR officer, HRC needed him to verify his contact information and maintain both an up-to-date physical exam and security clearance.  

13.  On 10 August 2004, HRC published mobilization orders ordering the applicant to active duty no later or earlier than 30 September 2004 for a period not to exceed 545 days in support of Operation Iraqi Freedom.  

14.  At some point following the issuance of mobilization orders, the applicant requested a 30-day delay or exemption from mobilization.  He was granted a 
30-day delay by the Delay and Exemption Board.  His orders were amended.  

15.  It appears he was in inactive status from 1 October 2004 to 9 February 2006, a period of 1 year, 4 months, and 9 days.  However, there are no orders on file authorizing him a transfer to inactive status or back to active status and/or orders appointing him as a Reserve commissioned officer. 

16.  On 15 December 2004, by letter, HRC notified him that he was considered for promotion by a Department of the Army Reserve Components Selection Board (RCSB) that convened on 13 July 2004 but he was not selected for promotion.

17.  On 30 January 2005, the Delay and Exemption Board revoked his mobilization order.  

18.  On 21 March 2005, HRC mailed the applicant a DA Form 3275 (Army Reserve Status and Address Verification) to his last known address. This form is used to verify pertinent information with the Reservist concerning his/her address, marital status, education, occupation, and physical condition.  This information is used to update the individual's personnel records to determine availability for mobilization in the event of a national emergency.  He did not respond.  On 18 April 2005, HRC sent the applicant a second DA Form 3275.  He again did not respond.  

19.  On 16 August 2008, during record maintenance, his file was removed and destroyed due to discharge.  His discharge orders are not available for review with this case.  However, HRC's SMS listed his CURORG as ‘Y.’  The CURORG identifies the Soldier's status within the Selected Reserve: 



* Code A		ARNG
* Code H		USAR TPU
* Code J		USAR Active Guard Reserve
* Code K		USAR Control Group (Annual Training)
* Code L		USAR Control Group (Reinforcement)
* Code O		USAR Standby Reserve (Active Status List)
* Code P		USAR Standby Reserve (Inactive List)
* Code R		USAR Retired Reserve
* Code Y		Archived Record

20.  On 20 August 2012, he contacted HRC to update his address, phone number, and email.   His AHRC Form 249-E, dated 22 August 2012, shows he had completed 13 years, 2 months, and 18 days of qualifying service toward non-regular retirement. 

21.  On 12 March 2013, he contacted HRC to update his retirement points.  At that time, an HRC official discovered he was coded CURORG "Y" indicating he had been discharged.  The official directed him to contact his assignment officer to update the CURORG code.  

22.  On 13 March 2013, an official at HRC advised him by email that his retirement points had been updated.  He was credited with 18 years, 2 months, and 18 days of qualifying service toward non-regular retirement. 

23.  On 3 April 2013, by email, his HRC assignment officer notified him that "with the 4 year break in service from 2002 to 2006, the MRD should reflect 20100701. Unfortunately, the system won't accept a date in the past.  The PAB will make a comment in SMS that his corrected MRD should reflect the 2010 date.  Which still puts him beyond MRD.  The reason the AC transferred him to CURORG 'Y' is unclear?  At this point, recommend [applicant] go through ARBA to request correction to his military record.  Based on the reason for transfer from CURORG 1 to CURORG Y in 2007, the years between 2007 and 2013 may potentially be deemed a break in service."

24.  On 27 January 2014, HRC published Orders D-01-401397 honorably discharging him from the USAR effective 1 June 2006 in accordance with Army Regulation 135-175 (Separation of Officers) by reason of maximum authorized years of service. 

25.  On 21 February 2014, he enlisted in the NEARNG for 3 years.  He was trained in and holds military occupational specialty 31B (MP).  He is currently deployed with his unit in Qatar.

26.  An advisory opinion was received from HRC on 1 April 2015 in the processing of this case.  The advisory official stated: 

	a.  The applicant is a former LTC who requested his MRD adjusted to reflect the different breaks in service.  HRC reviewed his application and determined there were errors in his commissioned time while in the USAR.  Specifically, there was a break in service from 21 February 1985 to 9 February 1989 (3 years, 11 months, and 19 days) and a second break from 1 October 2004 to 9 February 2006 (1 year, 4 months, and 9 days).  Due to the breaks not being taken into account, he was discharged based on an MRD of 1 June 2006.  His total commissioned service reflects 22 years, 8 months, and 2 days.  

	b.  He is now serving in the ARNG as a noncommissioned officer.  If reappointed, his MRD could be adjusted to 31 August 2017 due to the breaks in service.  His reason code should also be changed to maximum age. 

27.  The applicant was provided with a copy of this advisory opinion.  He responded on 5 May 2015 asking when his case would be boarded and how long would it take to implement the decision. 

28.  Title 10, U.S. Code, section 14507 (Removal from the Reserve Active Status List (RASL) for Years of Service) states unless continued on the reserve active-status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the reserve active-status list (RASL)) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

29.  DOD Directive 1235.13 states that officers who have fulfilled their mandatory service obligation and have not taken action to elect to remain in the IRR shall be advised of the requirement to remove them from the military.

30.  Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  Paragraph 4-4 states members of the Army Reserve will be removed from an active status for any of the reasons in paragraphs (1) through (18), with or without the officer’s consent regardless of the length of commissioned service (Army Regulation 140–10).  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to control group (inactive).  Reasons for discharge include:
* medical unfitness, maximum age, and length of service
* failure to qualify for promotion (warrant officer one to warrant officer two)
* non-selection for promotion after second consideration (chief warrant officer two or chief warrant officer three, first lieutenant, captain, or major)
* failure to earn sufficient retirement points for retention
* selection for removal from an active status (when WO or commissioned officer in the grade of colonel or below with 20 years or more of qualifying service for retired pay is recommended by a board of officers for removal from an active status and the SA approves the recommendation)
* exemption from involuntary active duty (on the approved recommendations of a board of officers that an officer should be exempted from involuntary active duty and that he should be discharged), lack of required qualifications for retention in the ARNG
* non-availability of Standby Reserve officer (when a non-available Standby Reserve officer continues to be unavailable for active duty 12 months after initiation of general mobilization)
* failure to complete a basic branch course, failure to complete military educational requirements
* non-acceptance of assignment by non-obligated officer (any non-obligated officer member of the IRR who refused to accept assignment to a USAR unit, IMA assignment or attachment to a USAR unit)
* failure to apply for transfer to the Retired Reserve on removal from active status; an officer who is removed from active status for any reason listed above will be discharged if he is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date he is advised that he is being removed from active status
* failure or refusal to provide mailing address; any noncitizen officer who, at the time of release from active duty fails or refuses to give a mailing address within the United States, Puerto Rico, the Virgin Islands, Guam, or the Canal Zone

31.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.

	a.  Paragraph 7-1 (Removal from Active Status):  Soldiers removed from active status will be discharged or transferred to the Retired Reserve except as stated in (1) and (2) below.  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.

	b.  Paragraph 7-2 (Length of Service):  LTCs are removed on the earlier of the following dates except as shown in (2), below.  The actual removal date will be 30 days after (a) they complete 28 years of commissioned service if under age 25 at initial appointment, and/or (b) their 53rd birthday if age 25 or older at initial appointment.

	c.  Paragraph 7-6 (Non-acceptance of assignment (removal rule 6)):  Remove non-obligated Soldiers of the IRR shown in (1) through (3) below if they refuse to accept an assignment.  (1) Civilian USAR technicians refusing to accept assignment as prescribed; (2) IRR Soldiers who refuse to accept assignment to a USAR unit or IMA position; Soldiers must be eligible for assignment as shown in paragraph 2-6.  They will be given 90 days to accept assignment if personal hardship precludes immediate participation; and (3) Officers who have 5 continuous years of IRR service without assignment or attachment to a USAR unit or IMA position.  Officers must be eligible and have been notified that an appropriate assignment or attachment can be made.

	d.  Paragraph 7-11 (General Exceptions) (b) (Erroneous removal from an active status):  The removal of a Soldier from active status becomes void if the removal was contrary to law.  When the erroneous removal is discovered, the Soldier will be allowed to resume active participation in the Reserve.  Removal orders will be revoked to clarify the record and the Soldier’s active status will be confirmed.

32.  According to the HRC website, a Soldier's MRD is based on the service documentation found in the Soldier’s personnel record and may be changed in the databases upon receipt of additional documentation.  The source document used to establish initial commissioning is the Soldier's first Oath of Office, DA Form 71.  

	a.  As a general rule, LTCs must be separated upon reaching 28 years of commissioned service.  If they are not on a promotion list for promotion to the next higher grade, they will be removed from the RASL list upon reaching 28 years of commissioned service, per Title 10, U.S. Code, section 14507(a).  The date of appointment as a commissioned officer is the start point for computing an officer's years of commissioned service.  Source documents that are used are the Oath of Office (DA Form 71) and Appointment Memorandum.

	b.  HRC provides an MRD Calculator to help determine an officer's MRD.  The data an officer inputs to the MRD Calculator Application provides the officer with on-screen information to establish or verify information concerning officer mandatory removal dates.  This calculator is designed to assist USAR Command, HRC, Regional Support Commands, and Troop Program Units in the computation and validation of officer mandatory removal dates in the automated personnel systems.  The calculator uses the current rules provided by the Reserve Officer Personnel Management Act (ROPMA) regarding mandatory removal dates.  It cannot be used in cases where pre-ROPMA rules apply.

	c.  Breaks in Service/Educational Delay:  For most officers, the only break in years of commissioned service will be a complete discharge from the service followed by a reappointment action with at least a 24-hour break.  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:  service as a warrant officer (includes commissioned warrant officers); constructive service; and 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.  The exclusion of this service does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve.  The law does not apply to officers who served in the Simultaneous Membership Program (SMP).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was born on 13 August 1957 and he was appointed in the USAR on 13 May 1978.  Despite the absence of his 2006 USAR discharge orders, he was discharged from the USAR on 1 June 2006 due to his MRD for maximum years of service as a LTC.  That is why his CURORG was coded as "Y" to indicate he was discharged.  He was not discharged in 2007 as he contends.  His records were archived in April 2008, but his discharge date was in June 2006 when he reached his maximum years of service (28 years). 

2.  It appears his AHRC Form 249-E was not updated at the time to reflect his inactive service/break in service.  For most officers, the only break in years of commissioned service will be a complete discharge from the service followed by a reappointment action with at least a 24-hour break.  He appears to have had two breaks in service (21 February 1985 to 9 February 1989 and 1 October 2004 to 9 February 2006) totaling 5 years, 3 months, and 28 days.  The second break is not substantiated because there are no requests or orders transferring him to an inactive status and back to an active status or an appointment order.  Nevertheless, if both breaks are factored in, based on the HRC MRD Calculator, as a LTC, his MRD should have been 1 September 2011, not 2014.  

3.  The gaps in his service indicate he may have been improperly discharged from the USAR in 2006 (not 2007 as he contends).  HRC published discharge orders in 2014, discharging him effective 1 June 2006.  The corrective remedy is to amend his discharge orders to show his discharge date as 1 September 2011 vice 1 June 2006 and amend his personnel records to show his MRD as 1 September 2011.  

4.  Because the Board accepts there were errors in his discharge, although he had a break between 2004 and 2006, it is still reasonable to presume he would have continued to at least try to earn enough points for a good year had it not been for his discharge and CURORG code in June 2006.  Therefore, in the interest of equity, he should be awarded 15 membership points and 35 inactive duty points per year for the period between 1 June 2006 (the date he was discharged) and 1 September 2011 (the date he should have been discharged) in order to credit him with the 50 point minimum required to qualify for a "good year" each year with back pay and allowances. 

5.  He enlisted in the ARNG on 21 February 2014.  His enlistment occurred long after September 2011, the date of the proposed adjusted MRD.  His enlistment was based on the needs of the Army at the time.  Reappointing him as a LTC on the date of his enlistment in the ARNG is not within the purview of this Board.  Nevertheless, when he applies for retired pay at age 60, he may request to be placed on the Retired List in the highest grade he satisfactorily held. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending Orders D-01-401397, issued by HRC on 27 January 2014 to show his discharge date as 1 September 2011 vice 1 June 2006
* awarding him an additional 50 (membership and inactive duty points) per year for retirement between 1 June 2006 and 1 September 2011 to qualify for a "good year" each of these years
* paying him all pay and allowances due as a result of the aforementioned corrections

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to restoration of his highest rank achieved, lieutenant colonel (LTC). 



      _______ _   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)                                         AR20150001599





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ABCMR Record of Proceedings (cont)                                         AR20150001599



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