MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 September 2000
	DOCKET NUMBER:   AR2000040054

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 effect, that he be returned to the Reserve Active Status List (RASL) from the Retired Reserve (RR) and extension of his Mandatory Removal Date (MRD).  

APPLICANT STATES:  He was mandatorily removed from the RASL and transferred to the RR after completing 30 years of commissioned service.  During the 15 months prior to his MRD he submitted three requests for an extension to his MRD.  These requests were denied based on there being no available mobilization positions in his primary specialty, 60N (Anesthesiologist) in the United States Army Reserve (USAR).  At this time he was serving as the acting commander of a Field Hospital and given he was a senior officer with command time who had completed the War College and held graduate degrees in business and law, he believes it was very unlikely the USAR would have utilized him in his primary specialty had his extension been approved.  

The applicant also comments that the Fiscal Year (FY) 2000 National Defense Authorization Act (NDAA) that was signed into law by the President on 5 October 1999 modified Title 10 of the United States Code, section 14706 by excluding time while in an advanced education program earning the first professional degree required for appointment from time served as a commissioned officer of the Reserve Component (RC).  Based on his interpretation of the changes in the law he made inquiries to the Officer of the Chief of the Army Reserve (OCAR) in regard to his eligibility for return to the RASL.  He was informed that the law clearly forbade retroactive application of its provisions.  

He disagrees with the OCAR determination based on the clear modification of the language of the bill as it passed through the legislative process and the policy expressed in the Department of Defense (DOD) legislative proposals (sectional analysis of the FY2000 NDAA to maximize the use and length of service of affected professional branch officers).  Further, the Senate deleted the language relating to an effective date of the application of the section.  An example is the language added based on the Air Force Reserve shortage of Medical Corps officers, which states, that the Secretary of the Air Force may, with the officer’s consent retain in an active status any Reserve officer who is designated as a medical officer, dental officer, nurse, Medical Service Corps officer, biomedical sciences officer, or chaplain.  

The applicant contends that law trumps regulation and that several Army regulations are inconsistent with the FY2000 NDAA and are likely subject to review and revision.  These include, for example, section 6-4(c) of Army Regulation 140-10 which states that Ready Reserve (RR) members who were removed from active status by board action or operation of law are ineligible for transfer to the RR, which would not be true if the provisions of section 515 of the FY2000 NDAA were applied retroactively.

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

On 10 June 1968, he was appointed a Second Lieutenant (2LT) in the Medical Corps of the USAR.  In September 1968, he was assigned to the Medical Field Service School, Fort Sam Houston, Texas to attend the Army Medical Department (AMEDD) Officer Basic Course (OBC) from which he graduated in December 1968.

He served on active duty from September 1968 to August 1970.  His assignments included the 29th Surgical Hospital at Fort Meade, Maryland, where he served as a Field Medical Assistant; and the 93rd Evacuation Hospital, Vietnam, where he performed duties as the Assistant Supply Officer, the Unit Supply Officer, and the Hospital Supply Officer.  In August 1970 he was transferred to the USAR Control Group (Reinforcement).

In November 1970, he was reassigned to the 322nd General Hospital, Newark, New Jersey, a USAR Troop Program Unit (TPU), as the Assistant Hospital Supply Officer.  He served there until July 1973 at which time he entered the Health Professions Scholarship Program (HPSP) at George Washington University, Washington D.C. 

He received his Medical Degree (MD) in 1975 and entered active duty to serve his internship as a Categorical Surgical Intern at Brooke Army Medical Center, Fort Sam Houston, Texas.  While on active duty he completed his Anesthesiology Resident Program at Walter Reed Army Medical Center, Washington D.C. in June 1980 and he served as an Anesthesiologist and the Chief Anesthesiologist at Madigan Army Hospital, Tacoma, Washington from July 1980 until October 1983.  At this time he was released from active duty and was transferred to the USAR.  He attained the rank of Colonel on 14 December 1990 and continued to serve in various components of the USAR until his removal from the RASL and transfer to the RR on 18 July 1998.

During the 15 months prior to his MRD the applicant submitted three requests for an extension to his MRD.  However, two months prior to his MRD he received a reply that these requests were disapproved based upon there being no USAR mobilization positions in his primary specialty.  
Orders Number 169-43, dated 16 June 1998, published by Headquarters, 81st Regional Support Command, Birmingham, Alabama codified the applicant’s voluntary transfer to the RR, under the provisions of paragraph 6-1, 
Army Regulation 140-10, effective 18 July 1998.  

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers.  Chapter 6 contains guidance of the transfer of RC members to the RR.  Chapter 7 governs the removal of members from the RASL based on their total commissioned service or length of service and states, in effect, that RC Colonels will be removed when they complete a total of 
30 years of commissioned service. 

Section III (AMEDD Officer Removal Exceptions and Processing Procedures) of chapter 7, Army Regulation 140-10 prescribes the exceptions to removal of AMEDD branch officers for length of service.  The regulation states, in effect, that the law allows for the retention of RC officers in an active status in certain AMEDD areas of concentration (AOC) until age 68.  Retention under these provisions is appropriate provided the member possesses a critical AOC which is short of Total Army mobilization requirements.  The Commanding General of the Army Reserve Personnel Command (ARPERCOM), operating on behalf of the Chief, Army Reserve, is the approval authority for retention under this section.  

Title 10 of the United States Code, section 14706, as contained in the United States Code as of 23 January 2000, contains the law governing the computation of a Reserve officer's total years of service and states, in pertinent part, that this includes all service of the officer as a commissioned officer of a uniformed service other than service as a warrant officer; constructive service; service after appointment as a commissioned officer of a RC 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. 

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

1.  The Board noted and considered the applicant’s contention that he should be restored to the RASL based on new law that would extend his MRD, a minimum 23 months and a maximum of 48 months, given the modified law contains no language prohibiting its retroactive use in his case.  However, the Board finds that this claim does not provide a basis for relief. 

2.  The evidence or record indicates that the applicant, upon reaching his MRD, voluntarily requested transfer to the RR in accordance with the regulations in effect at the time.  His request was properly processed and approved and his transfer to the RR was accomplished on 18 July 1998 under the existing law.

3.  While the Board concurs with the applicant’s assessment that the law contains no specific language prohibiting its retroactive use, it finds that conversely there is no language mandating the antedating of its new provisions.  Given the lack of any specific guidance or language on its retroactive application, the Boards finds no basis to apply the new law’s provisions prior to the date they were actually enacted. 

4.  The applicant was removed from the RASL and transferred to the RR on 
18 July 1998.  By the applicant’s own admission, the new law pertaining to the computation of total commissioned service in the RC, was not enacted until 
5 October 1999, which was more than a year subsequent to his removal from the RASL.  Therefore, the Board concludes that the requested relief is not warranted in this case. 

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  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

___ena__  ___jhl___  ___clg___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040054	
SUFFIX		
RECON		
DATE BOARDED	2000/09/21	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  335	135.0300	
2.  		
3.		
4.		
5.		
6.