PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            9 July 2002                  
	DOCKET NUMBER:   AR2001064465

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

	Mr. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston 		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Roger W. Able		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests changing his mandatory removal date from 19 March 1998 to 28 February 2005.  He also requests that his present enlistment status be voided and he be reinstated as a major in the Reserve.

3.  The applicant states that his MRD from his commissioned service was calculated incorrectly and he was transferred in error to the Retired Reserve on 19 March 1998.  He also states that he had been discharged from commissioned status on 28 January 1975 and was not reappointed to commissioned status until 17 August 1996; however, his time in discharged status was counted as commissioned time in calculation of his MRD.  He submits a statement in his own behalf, copies of his orders dated 5 March 1999 and 15 November 1999, a 28 September 1999 memorandum from the Transition and Separations Branch, his enlistment/reenlistment documents, his Chronological Statement of Retirement Points (RPAS) and documents from his official records in support of his application.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 28 July 1967 and ordered to active duty with a reporting date of 23 October 1967.

5.  He attained the temporary rank of captain effective 22 October 1969.

6.  He was separated from active duty effective 21 October 1970 and transferred to the USAR Control Group (Reinforcement).  He was promoted to permanent captain effective 22 October 1970.

7.  He was honorably discharged from the Reserve effective 28 January 1975.

8.  He was reappointed in the Reserve as a captain effective 17 August 1986.  He was promoted to major effective 16 February 1992.

9.  He was reassigned to the USAR Retired Reserve effective 19 March 1998, his MRD.

10.  He enlisted in the Reserve for 6 years, as a sergeant, pay grade E-5, effective 25 May 1999.

11.  On 28 September 1999, a staff member of Transition and Separation Branch, Army Reserve Personnel Command, expressed the opinion that the applicant has been transferred to the Retired Reserve because of attainment of maximum authorized years of service on 19 March 1998.  In accordance with Title 10, US Code, Section 14507, Reserve officers, lieutenant colonel and below (if not earlier removed from the Reserve active-status list) shall be removed from the list on the 1st day of the month after the month in which the officer completes 28 years of commissioned service.  Section 14706 states that Reserve officer’s years of service include all service, other than constructive service, of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer).  Under those provisions, and because the applicant was discharged from his commissioned status on 28 January 1975 and not reappointed into a commissioned status until 17 August 1986, his MRD has been recomputed to be 1 March 2007; however, he will reach his maximum allowable age on 20 February 2005, and under the provisions of section 14509 of the same Title, each officer who is still on the Reserve active-status list and has not been recommended for promotion to the grade of brigadier general, shall on the last day of the month in which that officer becomes age 60 be separated.  It is her opinion that the applicant was erroneously transferred to the Retired Reserve for completion of maximum authorized years of service.  Those orders should be revoked and the applicant should be returned to an active status until 28 February 2005, unless earlier removed by some other provision of law.

12.  He will reach age 60 on 20 February 2005.

13.  Title 10, US Code, Section 14507 specifies that each Reserve officer in the grade of lieutenant colonel and below (if not earlier removed from the Reserve active-status list) shall be removed from the list on the 1st day of the month after the month in which the officer completes 28 years of commissioned service.

14.  Title 10, USC, Section 14509 specifies that each Reserve officer of the Army in a grade below brigadier general, who has not been recommended for promotion and is not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes 60 years of age, be separated in accordance with Title 10, USC, section 14515.

15.  Title 10, USC, Section 14515 specifies that each Reserve officer who is in an active status and reaches the maximum age for the officer’s grade or position shall be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer or if the officer is not qualified or does not apply for transfer to the Retired Reserve, be discharged from their Reserve appointment.  This separation must occur not later than the last day of the month in which they reach the maximum age.

CONCLUSIONS:

1.  The applicant is entitled to expunction of his enlistment contract, with no force or effect, reinstatement to his previous commissioned status, with entitlement to back pay and allowances, and further correction of his MRD to 28 February 2005, the last day in the month in which he reaches age 60.

2.  It is further noted that any pay and allowances received by the applicant, as an enlisted man for the period of the now voided enlistment will be offset based on this records correction.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by voiding the transfer to the Retired Reserve effective 19 March 1998 with reinstatement to his previous Reserve commissioned status, with entitlement to back pay and allowances;

	b.  by voiding his enlistment in the Reserve effective 25 March 1999 with no force or effect; 

	c.  by correcting his mandatory removal date to 28 February 2005, the last day in the month in which he reaches age 60; and

	d.  by offsetting the pay received by the applicant based on his now voided enlisted status.

BOARD VOTE:  

_JHL___  __JBR__  _RWA____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		      Joann H. Langston 
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001064465	
SUFFIX		
RECON		
DATE BOARDED	20020709	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
 2.	136.00	
3.		
4.		
5.		
6.