IN THE CASE OF:	   

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150011113 


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 correction of his records to show entitlement to service credit and back pay wrongfully denied for all the battle assemblies and annual training from 9 May 2011 to 30 September 2014. 

2.  The applicant states:

	a.  A complete-the-record officer evaluation report (OER) was omitted from his records.  The U.S. Army Human Resources Command (HRC) admitted to the error.  Based on this error, he petitioned this Board and requested promotion consideration to lieutenant colonel (LTC) via a special selection board (SSB).  The Board granted him relief.  The Board's directive stated if he was selected for promotion, he would receive back pay and allowances.  He had been on active duty from 21 June 2010 to 8 May 2011.  He was assigned to the 3rd Legal Operations Detachment (LOD) from 1 June 2009 until his release from active duty on 8 May 2011 and subsequent transfer back to the U.S. Army Reserve (USAR).  Based on the SSB and selection for promotion to LTC/pay grade O-5, he received back pay for the time he was on active duty (i.e., from 21 June 2010 to 8 May 2011) but did not receive back pay or service credit from 9 May 2011 to 30 September 2014. 

	b.  In 2011, HRC advised him that due to his non-selection for promotion to LTC and his shortened mandatory removal date (MRD) based on his pay grade as an O-4, he would not be permitted to mobilize or perform reserve duties or annual training.  The unit administrator told him the same.  He was also informed he was facing separation because his records showed 19 qualifying years of service for non-regular retired pay.  HRC acknowledged his retirement points were incorrect and corrected the error.  HRC issued him a 20-Year Letter and transferred him to the Retired Reserve in the pay grade O-4.  HRC explained that because he was not selected for selective continuation, he would be transferred to the Retired Reserve effective 1 June 2011, the date he reached his MRD as a major (MAJ). 

	c.  Based on the Board's decision, he was considered by an SSB that selected him for promotion to LTC and accordingly, his MRD was extended by 4 years to 1 June 2015.  The revocation of his retirement orders placed him back into the 3rd LOD, USAR.  He followed up with the USAR Command G-1 and he was advised that in order to receive service credit and pay for the period from 9 May 2011 to 30 September 2014, he would need to apply to this Board.  The Board was clear in its recommendation in that if he were selected for promotion, his records would be corrected by voiding his removal from the Reserve Active Status List (RASL), showing he met the criteria for promotion effective the approved date of the promotion board, promoting him to LTC with an appropriate date of rank, and paying him any associated back pay and allowances.  His promotion was made effective 21 June 2010. 

3.  The applicant provides:

* ABCMR Docket Number AR20130001453 dated 14 November 2013
* Orders 126-0004 dated 6 May 2011 (release from active duty)
* email exchange with various individuals
* printout of a screen 
* promotion memorandum dated 4 June 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in May 1958.  He enlisted in the USAR under the Delayed Entry Program on 18 April 1983.  His retirement year ending (RYE) date was established as 17 April of the following year. 

2.  He enlisted in the Regular Army on 8 August 1983 and he was honorably released from active duty on 7 August 1985.  He served in the USAR in an enlisted status from 8 August 1985 to 8 May 1987. 

3.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 9 May 1987.  He was promoted to first lieutenant (1LT) in the USAR on 26 May 1990. 

4.  He was appointed as a Reserve commissioned officer of the Army in the rank of 1LT in the Judge Advocate (JA) General Corps and executed an oath of office on 11 March 1991.  He was promoted to major (MAJ) on 7 September 2002. 

5.  He completed the JA Officer Advanced Course in January 2000.  He entered active duty on 17 January 2003 and served at Fort Lewis, WA.  He was honorably released from active duty on 28 January 2004. 

6.  On 27 May 2009 he was ordered to active duty in support of Operation Enduring Freedom.  He entered active duty on 1 June 2009 and he was assigned to the 3rd Legal Support Organization, Office of the Staff Judge Advocate, Fort Lewis, WA.  

7.  On 11 August 2009 by letter HRC notified him that he was considered for promotion to LTC by an SSB under the 2007 criteria but he was not selected for promotion.  

8.  On 16 November 2009 by letter HRC notified him that he was considered for promotion to LTC by an SSB under the 2008 criteria but he was not selected for promotion.  

9.  On 6 May 2011, Joint Base Lewis-McChord published Orders 126-0004 honorably releasing him from active duty effective 8 May 2011 by reason of completion of his required active service.  

10.  He was honorably released from active duty in the rank of MAJ on 8 May 2011 and he was transferred to the Legal Services Organization, Detachment 5, Boston, MA.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 11 months, and 8 days of active service.  

11.  On 14 February 2013 HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  

12.  On 5 March 2013, Headquarters, USAR Command, Fort Bragg, NC published Orders 13-064-00018 transferring him to the Retired Reserve effective 15 March 2013 by reason of having reached maximum years of service as a MAJ. 

13.  On 14 November 2013, in response to his petition to this Board for promotion consideration to LTC by an SSB, the Board granted him relief as follows: 

* submitting his records to an SSB for promotion consideration to LTC and if before promotion consideration he is removed from the RASL, correct his records by continuing the SSB
* if selected for promotion, correct his records by voiding his removal from the RASL (retirement orders) and showing he met the eligibility criteria for promotion effective the approval date of the promotion selection board
* if selected for promotion, promoting him to LTC with the appropriate date of rank and paying him all associated back pay and allowances
* if not selected for promotion, notify him  

14.  On 23 May 2014 HRC notified the applicant that he was considered and selected for promotion to LTC under the Fiscal Year 2010 LTC JA Army Reserve Non-Active Guard Reserve Promotion Selection Board. 

15.  On 4 June 2014 HRC issued him a memorandum, subject: Promotion as a Reserve Commissioned Officer of the Army, effective 21 June 2010.  The memorandum stated his promotion, pay and allowances, and time in grade for promotion to the next higher grade (LTC/pay grade O-5) would be effective 21 June 2010. 

16.  On 28 August 2014, Headquarters, USAR Command, Fort Bragg, NC published Orders 14-240-00025, revoking Orders 13-064-00018 that transferred him to the Retired Reserve effective 15 March 2013 by reason of having reached maximum years of service (MAJ/pay grade O-4).  Once these orders were revoked, the applicant began drilling again with his USAR unit. 

17.  On 15 March 2015, HRC published Orders 15-074-00024 transferring him to the Retired Reserve effective 1 June 2015 by reason of having reached maximum authorized years of service as a LTC.  His AHRC Form 249-E (Chronological Statement of Retirement Points) shows the following entries:

Beginning Date 
Ending Date
Status
Inactive Points
Membership points
Active Points
Total Points
Qualifying for Retirement
20150418
20150601
USAR
14
2
05
21
00-01-15
20140418
20150417
USAR
18
15
00
33
00-00-00
20130316
20130316
RET
00
00
00
00
00-00-00
20120418
20130315
USAR
02
14
00
16
00-00-00
20110418
20120417
USAR
00
15
21
36
00-00-00
20100418
20110417
USAR
00
15
365
365
01-00-00
20090418
20100417
USAR
00
15
328
343
01-00-00
20080418
20090417
USAR
53
15
33
101
01-00-00
20070418
20080417
USAR
60
15
17
92
01-00-00
18.  He provides email traffic with various Army officials in relation to correction of his retirement points and the issuance of a 20-Year Letter.  He also provides additional email traffic with the USAR Command in relation to "missed drills and annual training." 

19.  Army Regulation 135-175 (Separation of Officers) 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 a number of reasons including reaching maximum authorized years of service (24 years for a MAJ and 28 years for a LTC). 

20.  Army Regulation 140-10 (assignments, Attachments, Details and Transfers) 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):  The actual removal date for LTCs 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered active duty as a member of the USAR on 1 June 2009 and he was honorably released from active duty on 8 May 2011.  He was considered for promotion to LTC twice but he was not selected.  He was transferred to the Retired Reserve on 15 March 2013 by reason of having reached his maximum authorized years of service.  He was not separated or transferred to the Retired Reserve on 1 June 2011 as he contends.

2.  After his release from active duty on 8 May 2011 and even after his transfer to the Retired Reserve on 15 March 2013, the applicant's AHRC Form 249-E shows he received two inactive and/or active duty points and earned membership points.  

3.  After his transfer to the Retired Reserve effective 15 March 2013 and petition to this Board, he was considered by an SSB that convened in March 2014.  He was notified in June 2014 that the SSB selected him for promotion to LTC with an effective date of 21 June 2010.  His Retired Reserve orders were revoked in August 2014 and from that date he began drilling again with his unit through 1 June 2015, the adjusted date of his transfer to the Retired Reserve in light of his promotion to LTC.  For example, during the period 18 April 2014 to 17 April 2015, he earned 33 retirement points (15 membership points and 18 inactive duty points) and during the period 18 April 2015 to 1 June 2015, he earned 21 retirement points (2 membership points, 14 inactive duty points, and 5 days active duty). 

3.  There were errors in his transfer to the Retired Reserve on 15 March 2013; therefore, it is 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 transfer to the Retired Reserve on 15 March 2013. 

4.  Therefore, in the interest of equity, he should be awarded maximum prorated membership and inactive duty points from 15 March 2013 (the date he was transferred to the Retired Reserve) to 28 August 2014 (the date his Retired Reserve orders were revoked and he was able to perform drills) as recommended below.  

5.  Concerning his request to award him service credit and pay from 9 May 2011 to 30 September 2014, there is insufficient evidence to show that from 9 May 2011 to 15 March 2013 he was not allowed to drill or perform annual training as he contends in his statement.  Nor has he provided sufficient evidence to show that upon his promotion and reinstatement to his USAR unit, he was not able to earn the minimum number of retirement points per retirement year.  Therefore, this portion of his request should be denied.

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:

* awarding him prorated membership points and inactive duty points from 15 March 2013 (the date he was transferred to the Retired Reserve) to 17 April 2013 (the date his RYE would have ended)
* awarding him prorated membership and inactive duty points from 18 April 2013 (the beginning of his RYE) to 28 August 2014 (the date his Retired Reserve orders were revoked) 
* paying him at the rate of LTC 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 awarding him service credit and pay from 9 May 2011 to 30 September 2014.



      _______ _   _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)                                         AR20150011113



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ABCMR Record of Proceedings (cont)                                         AR20150011113



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