MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           6 February 2001                   
	DOCKET NUMBER:   AR2000034979

	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. Carl W. S. Chun		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr. 		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi 		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:  In essence, civilian counsel, on behalf of the applicant, requests that the applicant's involuntary release from active duty (Army Guard/Reserve (AGR) Program) in August 1994 be set aside; that he be reinstated to AGR status with back pay, allowances, or credit toward his Active Federal Service (AFS) account from the date of his release from the AGR Program (4 August 1994); and removal of all  prejudicial records relating to his involuntarily release from the AGR program and to reflect continuous AFS from that date.  As an alternative, counsel requests that the Board adjudicate the facts in the case to establish an error or injustice; to forward a favorable recommendation to the appropriate official to immediately reenter the applicant into the AGR Program from his current ADSW (Active Duty-Special Works) Program; and as an exception to the maximum age rule (age 60), as established in Army Regulation (AR) 140-10, that he be extended to age 64 as provided for in cases involving Army Medical Department (AMEDD) officers.  

APPLICANT STATES:  Counsel, in his brief, states that the Board should waive the 3-year statute of limitations rule in this case for good cause, essentially because that under the Soldiers and Sailors Civil Relief Act, any active duty tolls the statute of limitations.  Further, the applicant has been on continuous ADSW tours since the summer of 1996 and he hired civilian counsel in 1998 to conduct legal research, in essence to process his (this) appeal.  Counsel and applicant essentially put forth six arguments:

1).  That prior to the passage of the Reserve Officer Personnel Management Act (ROPMA) on 5 October 1994, Reserve officers on active duty were mandatorily  removed from active duty at ages 53 or 58, depending on the age at which they were commissioned in the Army Reserve (USAR)-age 53 for those appointed after age 25, age 58 for those appointed prior to age 25.  Passage of the ROPMA eliminated the age 53 separation criteria.  Further, since the Service secretaries were given 2 years in which to implement ROPMA, the window between the date of passage and the date of implementation left room for potential abuse and injustice whether or not to "grandfather" certain critical and deserving specialties/specialists, to include AGR soldiers.  The Army knew in 1994 that, with the reduction in the active Army, it was critical to keep motivated and highly qualified soldiers in the active force.  In fact, the AGR program was significantly increased several years later as the result of the reduction in active forces.  

2).  Counsel also contends that there were several regulations governing the service requirements/separations for AGR soldier's to include 
AR 140-10 (Assignments, Attachments, Details and Transfers), 
AR 140-30 (Active Duty in Support of the USAR and AGR Management Program), and AR 635-100 (Officer Separations).  Further, some USAR officers were selected for promotion under active duty criteria (USAR officers serving on active duty in an "other than Regular Army" (OTRA) status); others, such as AGR officers, are considered under USAR promotion criteria.  This may have been in violation of Federal statute (Title 10, United States Code, section 10209) which essentially states that both Regulars and Reservists will be managed without discrimination.   

3).  Next, counsel argues that even though applicant had more than 18 qualifying years of service, thus normally warranting an extension to 20 years service, he could only do it in a USAR status, unless he got a waiver to extend beyond age 53 while on active duty.  The regulations governing these extensions require approval by the Secretary of the Army, but the time frame for requesting such extensions are confusing, one regulation saying 120 days before, another program only required 90 days notice for separation.  It was noted by counsel that at least two levels of review were required before reaching the Secretary of the Army, and that commanders are to be given plenty of advanced notice for planning purposes.  Further, counsel contends that soldiers transitioning from active duty are to be given extensive counseling and assistance for transitioning from military to civilian life.  Such counseling and assistance should start 
180 days prior to the scheduled separation.  This disparity was solved by a change to AR 635-100 in 1995 when the announcement for separation from active duty was standardized at 180 days. Counsel equates this change to a "catch all" type correction, which clearly establishes a case of error and injustice in the applicant's case.  Courts have held in other cases that remedial relief is required in such cases.

4).  Counsel submits a summary of facts in this case.  Applicant, while serving on an extended AGR tour since 1986, was promoted to the rank of major in July 
1987.  Then, in 1993 he was selected for promotion to the rank of lieutenant colonel (LTC), to be effective in 1994.  He submitted a request for an extension beyond age 53, as an exception to policy in April 1994.  His staff agency (Office of the Surgeon General (OTSG)) supported his request and identified a LTC position for him to fill.  That agency contended that  the applicant was considered to be in a critical specialty which was instrumental in improving and maintaining the strength of the AMEDD in the USAR.  When no action was forthcoming, the OTSG checked on the action, with little effect.  The applicant claims that he was separated on 3 days notice (orders issued on 1 August, effective 4 August 1994). The delay in the announcement was attributed to "administrative error" by the Army Reserve Personnel Center.  Further, the applicant had 60 days accrued leave that he could have taken, and extended his service until after the ROPMA was enacted on 5 October 1994.  

5).  Counsel cites a number of Federal court cases all of which support his contention that since the applicant was improperly released from active duty, courts have held that reinstatement is mandated.  He claims he was not properly advised about his promotion status in the USAR and that he has been sent to a number of schools and ADSW assignments from 1996.  Since ADSW assignments are carried against the end strength of the active Army, the same as AGR officers, the applicant could have been continued in an AGR assignment with no change in strength accounting.  

6).  Finally, counsel contends that if the ABCMR does not grant the relief requested, the applicant will not have completed 18 years of active service by the time he reaches age 60.  This will negate all the applicant's efforts since 1986 to reach 20 years of active service for retirement purposes.  

The application is accompanied by seven documents essentially a first endorsement by the OTSG, dated 12 May 1994, supporting the applicant's request for retention on active duty, as an exception to policy, beyond age 53; a summary by the same endorsing officer, dated 19 February 1999, in which he reiterates the efforts made to retain the applicant on active duty beyond age 53; a letter from a retired Major General who supports the applicant's case, to include his repeated ADSW assignments; his DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 4 August 1996, when he was released from active duty; a copy of Orders C-07-700968, issued by the 
US Army Reserve Personnel Center on 1 August 1994, directing the applicant's release from active duty and the AGR program on 4 August 1994; an extract of an Army Link Newsletter article, dated 3 December 1998, announcing an increase of more than 1700 positions in the AGR program in early 1999; a copy of his promotion order to LTC, USAR, dated 3 May 1995, but effective 5 August 1994, with a date of rank from 1 July 1994; and an Officer Evaluation Report for the rating period April-August 1996 for an ADSW assignment during that period.  

COUNSEL CONTENDS:  Essentially as outlined above in the brief prepared on  behalf of the applicant.

EVIDENCE OF RECORD:  The applicant's military records are limited, consisting essentially of Officer Evaluation Reports (OER's) between July 1981 and May 1998 from his Personnel Electronic Records Management System (PERMS) record file, and some data from the US Army Reserve Personnel Command 
(AR-PERSCOM) data base.

The applicant was born on 6 July 1941.  He had active service between June 1963 and September 1967, exactly in what capacity is unknown.  After separation from active duty, he appears to have remained a member of the Army Reserve (USAR).

Between July 1981 and December 1984, he served with Troop Program Unit (TPU) hospitals in New York state, as a Medical Service Corps (MSC) officer, with the rank of captain.  His date of rank was 3 July 1980.  His duties were as adjutant from July 1981 through December 1983, and his OER's were center of mass (COM) reports, with favorable comments.  For the next year he served as a unit commander of a USAR hospital.  His OER for this period was an above COM report.  He also completed the AMEDD Advanced Officer Course through a 
non-resident course of instruction in May 1984.  

On 28 July 1986, he was called to active duty (AGR Program) as an Assistant Professor of Military Science, with duty at the Georgia Military College at Milledgeville, Georgia, and served in that assignment to 8 June 1991.  His OER's were essentially COM reports (in one instance he was above COM (seventh of 34 officers rated), in a second report nine of the 41 officers being rated were above him and were above COM).  However, his performance comments were always highly complimentary.  Also during this period, he completed the non-resident Command and General Staff College course requirements and was issued a diploma.  

In September 1991, he began a continuing  assignment in the AGR program as a USAR AMEDD Procurement Counselor in the northwest United States (Washington state).  His three OER's ratings between 1991 and 1994 were COM reports.

In connection with his release from active duty in August 1994, the evidence of record is very limited.  Essentially, it appears that the applicant submitted a personnel action (DA Form 4187, copy not available) on 2 May 1994, requesting that he be retained on active duty beyond age 53, as an exception to policy.  On 12 May 1994, the Senior USAR Advisor in the OTSG, strongly concurred in this request by endorsement thru the personnel office of the OTSG to the Office of the Chief, Army Reserve (OCAR).  In a separate document, the OTSG action officer, who was his supervisor, stated that there was a real need for the applicant to continue in his duty assignment.  He tried to shepherd the case through the "system", but it never got acted upon before the applicant was separated.    

On 4 August 1994, he was honorably separated from active duty, at age 53, under the provisions of Army Regulation 635-100, paragraph 3-30a, by reason 
of  maximum service.  He was transferred to the USAR Control Group (Reinforcement).  He was credited with 8 years and 9 days active service on this period of service (1986-1994), 4 years, 3 months and 12 days prior active service (for a total of 12 years, 3 months and 21 days active service), and 18 years, 
10 months and l4 days prior inactive service.  He received separation pay in the amount of $51,911.37 at that time.

On 5 August 1994, the day following his release from active duty, he was promoted to the rank of lieutenant colonel (LTC) in the USAR, with his time in grade computed from 1 July 1994.  His branch remains MSC, and his officer specialty is 67A, Health Services.

Between August 1994 and some date in 1996, he served in an Individual Mobilization Assignment (IMA) at Fort Carson, Colorado and served two 12-day annual periods of active duty in 1995 and 1996.  His ratings were COM reports, but he was rated in the top block by the senior rater.  He had a 5-month ADSW assignment from 8 April-30 August 1996 as a Project Officer with the US Army Medical Command.  During this period, he attended a Reserve Components National Security Course from 22 July-8 August 1996.  His OER was a top block report, with very favorable comments to include both his rater and senior rater recommending that he be recalled to an active status in the AGR program. 

On 15 July 1996, he was notified that he had 20 qualifying years of service, at age 60, for retirement from the USAR.  His current Mandatory Release Date is 
31 July 2001.  

From 10 September 1996-19 April 1997, he served on active duty with the Office of the Surgeon General, United States Army Europe, as a medical liaison officer. He received a three-block rating (only officer rated).  

He then had two 17-day active duty assignments with the US Pacific Command as the Chief, Medical Operations Branch in September and October 1997.  His OER ratings were top block, with only one or two others officers being rated.  Essentially, these were COM reports, but the comments were very complimentary.  

He then served 6 months on active duty with the Pacific Regional Medical Command in Hawaii, as the Chief, Curriculum and Training, Center of Excellence from November 1997 to May 1998. His OER upon relief from this assignment was not fully satisfactory (a third block report, with some negative comments from his rater) and it was referred to him for comment/rebuttal.  He apparently submitted a request for a "Commander's Inquiry," which was denied on 
9 December 1998.  

He submitted a copy of a message order with his application which ordered him to an ADSW assignment at the US Army Pacific effective 2 November 1998 for 179 days plus travel.  Further, other information from his Reserve records indicate that he had additional active duty assignments as a USAR officer until at least some date in the year 2000.  He currently is credited with more than 
24 years qualifying years of service for retirement (50 or more retirement points per year), and more than 6000 retirement points.

The Office of the Chief, Army Reserve (OCAR) has reviewed the applicant's request and recommends denial of his request.  Essentially, Army Regulation 140-10, paragraph 7-2f, states that officers in the rank of LTC or lower are to be removed from active service at age 58 if they were commissioned prior to age 25, and at age 53 if commissioned after age 25.  The applicant's adjusted date of commissioning is 17 July 1975, at age 34.  Therefore, his separation from the AGR in August 1994 was appropriate.  This separation is further supported by Title 10, United States Code, Section 3853.  

The OCAR also notes that the applicant's continuation in an active status in the USAR beyond age 60 is not possible by statutory ruling.  Title 10, United States Code, Section 14509, states that each Reserve officer of the Army in a grade below brigadier general and not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes age 60, be separated.  The OCAR goes on to note that the applicant's request for retention beyond age 
60 as an AMEDD officer cannot be approved.  Title 10, United States Code, Section 14703, states that the Secretary of the service concerned may retain any MSC officer, with his consent, up to age 67 if the officer has been designated as an allied health officer or biomedical science officer in that Corps.  The applicant is not in either category.  

The applicant had 12 years, 3 months and 21 days active status at the time of his separation on 4 August 1994.  Title 10, United States Code, Section 1163 (d), provides that under regulation prescribed by the service Secretary concerned, an individual who is on active duty (except for training) and is within 2 years of eligibility for retired pay, under a purely military retirement system, may not be involuntarily separated from active duty before becoming eligible for retired pay.  However, the applicant did not meet this criteria in August 1994.

The OCAR notes that the applicant has been permitted to continue to serve in Individual Mobilization Augmentee (IMA) and Active Duty for Special/Support Work (ADSW) assignments since 1994.  On 7 August 1996, he was issued a notification letter that he was eligible for retired pay at age 60.  Therefore, in accordance with Title 10, United States Code, Section 12731, upon application, the applicant will be eligible to receive retired pay in July 2001.  However, his retired pay will be offset in the amount of $51,911.37, the amount of separation pay he received in August 1994.  

The OCAR finally advised that even if the applicant had been placed on terminal leave in August 1994, and using his 60 days accrued leave, this would still have made him 3 days short of the effective date of the new ROPMA policies on
5 October 1994, which would have permitted him to remain in an active status in the USAR until 30 days beyond age 58.  

The foregoing advisory opinion was referred to the applicant and his counsel for their review and comment.

Applicant's counsel, responded on behalf of the applicant, essentially contending that the OCAR opinion does not state that the applicant would have been denied an extension of his terminal leave of 60 days (plus a 3-day grant of excess leave under the provisions of Army Regulation 630-5).  Further, the opinion does not state why the OCAR would not have granted such a request in 1994.  
Further, counsel contends that this Board could exercise its "equitable" mandate to "correct an injustice," and grant this ”modest" 3-day extension of leave.  This is supported by the Army's decision in 1996 to return the applicant to a series of six consecutive 180-day tours through 12 January 2001.  Finally, the opinion does not dispute that his request for extension of his AGR tour in 1994 was not properly processed in a timely manner.  

Counsel and applicant again review the provisions of Army Regulations 
135-18 and 635-100, wherein a Reserve officer could have been retained beyond a mandatory removal date, on an individual basis by authority of the Secretary of the Army in 1994.  Further, the OCAR certainly knew of the impending ROPMA policy changes to be effective in October 1994.  

Counsel also notes that Army Regulation 630-5 (Leaves and Passes) permitted excess leave up to 60 days, and in exceptional cases, the Total Army Personnel Command (PERSCOM) could approve excess leave beyond 60 days;  however such extensions would be without pay and allowances.  Counsel contends that the applicant's command did send an endorsement to the PERSCOM which could be reasonably interpreted as a "direct PERSCOM" request for excess leave under the cited regulation.  As an alternative, the endorsement could be considered a "in the best interest of the unit" request.  

Counsel goes on to state that the applicant's current ADSW tour ends on 
12 January 2001, and he has not requested a new assignment since he has been offered and accepted a "multi-year, defense-contract civilian job" beginning in February 2001 which is a very rare opportunity for the applicant in view of his age.  Therefore, unless he can be granted a 20 year active duty retirement, then he requests an Early Retirement at 18 years, 8 months and 20 days.  Counsel contends that he has verified that such an option exists, on an individual basis upon application through the Army Reserve Personnel Command
(AR-PERSCOM) and the OCAR, a major general.  

Conversely, if the applicant must serve to 20 years active service to receive an active duty retirement, then this Board should approve his request for constructive service credit retroactive to 3 October 1994 to at least 12 January 2001.  The applicant then would waive sanctuary for further active duty under Title 10, United States Code, Section 1163 and instead apply the accrued 
"18 years plus+" toward his Reserve Retirement commencing in 2001, at age 60. 

Counsel then notes that even though the applicant received "severance" 
(sic: separation) pay in the amount of $51,911.37 in 1994, any back pay due to the applicant as the result of the Board's action to restore him retroactively to active duty would essentially offset this "severance pay."  Further, the Board's award of early active duty retirement, or active duty credit toward USAR retirement will likely be a negligible amount of back-pay due, if any at all.  "Any monetary relief will thus be prospective, coming from the military's retirement appropriations." 

Title 10, United States Code, Section 12731a(c)(3) (Temporary Special Retirement Qualification Authority), enacted the early qualification for retired pay at age 60 for soldiers found medically disqualified for retention in the U.S. Army Reserve or the Army National Guard on or after 5 October 1994.  Under this provision, soldiers who complete at least 15 but less than 20 years of qualifying service and are medically disqualified are eligible to receive retired pay at age 60.  The amount of retired pay is based on the total number of qualifying years of service at time of removal rather than the 20 years normally required.  Only soldiers who transfer to the Retired Reserve as a result of the medical disqualification are entitled to receive this benefit.  This benefit is now effective until 31 December 2001.  

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy this requirement.

2.  The evidence of record shows that the applicant was born on 7 July 1941, and was serving in an AGR position at age 53 when he was separated from active duty on 4 August 1994.  The Board is satisfied that this separation was required by paragraph 7-2f, Army Regulation 140-10, then in effect.  This requirement was established based on the provisions of Title 10, United States Code, Section 3853, which was then in effect.  

3.  While the applicant and his counsel make extensive arguments that he should have been retained in the AGR program as an exception to policy by individual action of the Secretary of the Army, the Board is not convinced that error or injustice exists in this case.  His supervisors in the OTSG supported his request for continuation on active duty in his AGR assignment.  That this request was not acted upon in a timely manner is unfortunate, and his short notice to be separated from active duty is likewise unfortunate.  However, these matters do not make the separation action improper or inequitable.  The applicant has failed to show that he was so indispensable to the USAR AMEDD procurement program that the program was severely compromised.  

4.  If is conceivable that the applicant could have been continued on terminal/excess leave until the effective date of the ROPMA.  But he was not;  this was not an error, this was not an injustice.  The applicant is no different than other officers in the Army who could have been affected by the ROPMA, but due to "timing" became ineligible to qualify for the new provisions of law.  The law was not retroactive and accordingly, in August 1994 he was basically not eligible to serve in an active status beyond age 53.

5.  The Board also notes that the applicant should have been transferred to the Retired Reserve (a voluntary request would have been required) or discharged from the Army Reserve on 4 August 1994.  That this was not done is not within the purview of this Board.  He was permitted to continue in an active status in the USAR in an IMA assignment between 1994 and 1996, and in a series of ADSW assignments between 1996 and January 2001.  While several of these assignments were considered active duty, the selection criteria and other aspects of these programs are entirely different from the AGR program.  Therefore, there are no provisions in Army regulations for the service as an IMA/ADSW officer to be counted as a continuation of an officer's AGR tour of duty.  However, during his period of service since 1994, he was credited with completion of 20 years qualifying service for retirement at age 60 and was issued a letter to this effect on 7 August 1996.  This letter of authorization is not revocable.  Therefore, the applicant will be eligible to retired in July 2001, at age of 60, with credit for more than 18, but less than 20 years active service and more than 6000 retirement points upon which his retired pay will be based.    

6.  In response to the applicant's contention that since he had more than 
18 years service in 1994 (commonly referred to as the "sanctuary" clause), and therefore, he should have been permitted to continue to 20 years service for retirement purposes is not correct, either by statute or regulation.  On 4 August 1994, he had only slightly more than 12 years active duty.  In accordance with Title 10, United States Code, Section 1163 (d), in effect in 1994, he would only have been permitted to continue on active duty to reach 20 years active service if he had 18 or more years active service for retirement purposes on the date of his release from active duty in the AGR program .  Even though he now has more than 18 years active service, Title 10, United States Code, Section 
14509, precludes service of Reserve component officers in his grade beyond age 60.  The applicant will be age 60 on 7 July 2001.  Therefore, he must be separated from the USAR either by voluntary retirement or outright discharge. 

7.  His contention that, since he is an AMEDD officer, he should be permitted to serve until age 64 or 67 is also not based on law.  Title 10, United States Code, Section 14703 makes provisions for the retention of MSC officers beyond age 
60 only when they are designated as an allied health officer or a biomedical science officer.  He is not so designated.  

8.  In summary then, ROPMA was not retroactive.  The applicant was properly released from active duty at age 53, notwithstanding the desires of his supervisors.  This most likely was a policy decision on the part of OCAR, the staff agency charged with management of the AGR program.  He has been permitted to serve in an active USAR status, contrary to law, for almost 7 years, received pay and allowances and other active service benefits, earned sufficient service credit to qualify for retirement at age 60, and will be able to retire in July 2001.  The applicant should be proud of this contributions to the Army and his Country is grateful for his dedicated service.   

9.  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

__rvo ___  __wtm___  __tl_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000034979	
SUFFIX		
RECON		
DATE BOARDED	20010206	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19940804	
DISCHARGE AUTHORITY	AR635-100, Para 3-30a	
DISCHARGE REASON	A03.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.03	
2.	135.02	
3.	135.03	
4.	A01.01	
5.	A01.13	
6.	A92.18