MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9806530

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction of his military records to show he has had continuous active duty since 16 December 1987 and/or recall to active duty so he can complete 20 years of active federal service (AFS).

APPLICANT STATES:  That his release from active duty was in violation of the statutes and unjustly denied him the opportunity for further active federal service and an eventual active federal service retirement.  He attaches a Deputy Chief of Staff for Personnel message dated 141814Z April 1988 which cites a U. S. Court of Appeal ruling that reserve component members serving on short tours of active duty for training (ADT) who were within two years of qualifying for an active duty retirement may not be involuntarily released from active duty prior to becoming eligible for retirement pay unless their release is approved by the Secretary of the Army.  (The message went on to state that in response to this ruling, Congress clarified its original intent and amended Title 10, U. S. Code to clearly exclude reservists serving on active duty for training from the “sanctuary” provision.  The extent to which the ruling applied to other reserve component personnel who were involuntarily released form active duty notwithstanding that they were within two years of qualifying for an active duty retirement had not yet been established.)

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned a second lieutenant in the U. S. Army Reserve on 4 June 1963.  He entered active duty and served until 31 August 1980, when he was transferred to the U. S. Army Control Group (Reinforcement).  He qualified for a Reserve retirement by March 1987.  He reached 18 years of active federal service in May 1987.  He was ordered to ADT on 26 February 1989 and released from ADT on 25 February 1989.  He was transferred to the Retired Reserve, in pay grade O-6, on 22 April 1994.

In the processing of this case, an advisory opinion was obtained from the legal advisor to the Army Review Boards Agency.  The opinion notes that the Court of Appeals case cited by the applicant in support of his contention that he was illegally released from ADT, Ulmet vs. The United States, is not applicable and he was not  improperly released.  A second court ruling overruled Ulmet; however, because the Ulmet case had been in the court system so long the court decided that Ulmet would benefit from the first ruling but no other reservist would.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The court case cited by the applicant in his contention that he was released from active duty in violation of the statutes applies only to Ulmet and to no other reservist.  The applicant was not improperly released from active duty for training.

2.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director