MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  26 November 2002
	DOCKET NUMBER:  AR2002073805

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Herbert O. Fry		Member	
	Mr. Roger W. Able		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:  That his records be corrected to show that he was discharged from active duty and not transferred to the Individual Ready Reserve (IRR).

APPLICANT STATES:  That he has no statutory service obligation to serve in the IRR.  He was separated from active duty on completion of his active duty service commitment and had completed over 11 years of active duty service and over 4 years Reserve Component service.  He was not offered the opportunity to resign his commission to prevent his transfer to the IRR.  

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

The applicant was appointed as a warrant officer in the Army Reserve in the pay grade of W1 effective 13 January 1995, with concurrent call to active duty.  He had almost 4½ years prior active duty and over 4 years Reserve Component service.  Although he had completed his mandatory service obligation, he was contractually obligated to serve an active duty commitment of 6 years after completion of his technical and tactical certification.  His appointment memorandum states that his appointment is for an indefinite term; however he had an expiration of active duty service commitment of 2 February 2002.

Effective 13 January 1997, the applicant was promoted to the grade of Chief Warrant Officer-Two (CW2) and effective 10 February 1997, he accepted his commission as a warrant officer.  His Officer Record Brief (ORB) shows that his component was Army Reserve, not Regular Army.

Effective 6 September 2001, the applicant was assigned to the transition point for separation processing.  His date of release from active duty was shown as 2 February 2002 and he was to be assigned to the Army Reserve Control Group (Reinforcement) which is part of the IRR.  His component is listed as Army Reserve.

Effective 2 February 2002, the applicant was separated from active duty based on completion of his required active service and transferred to the Army Reserve as an Army Reserve warrant officer.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he had no remaining Reserve obligation and that he was transferred to the Army Reserve in accordance with Army Regulation 600-8-24, paragraph 2-7.

The applicant states that he did not accept an Army Reserve warrant officer appointment in the IRR and he should have been discharged because he no longer had a service obligation.  He also states that he was not properly informed about his transfer to the IRR but was told that his records were being sent to the Army Reserve and he did not have to worry about that.  If he had been provided the correct information he would have resigned his commission.

In the processing of this case an advisory opinion was provided by the Army Reserve Personnel Command (AR-PERSCOM).  The opinion notes that the applicant had no remaining service obligation and accepts the applicant's contention that he did not desire any further military service.  The AR-PERSCOM recommends changing his DD Form 214 to show that he was discharged and not transferred to the IRR.  The applicant concurred with the advisory opinion.

Title 10, United States Code, section 12241, provides that appointments made in permanent warrant officer grades are for an indefinite term and are held during the pleasure of the Secretary concerned.

Army Regulation 600-8-24 provides the policy for the transfer of active duty officers to the Reserve Components or discharge.  Chapter 2 provides that an officer who has completed his or her active duty commitment, to include service obligations, will be released from active duty.  Chapter 3 provides the policy for voluntary resignations and states that any officer may tender a resignation after completion of his or her service obligation.  The Secretary of the Army will accept resignations and orders will be issued by direction of the Total Army Personnel Command.

Army Regulation 135-173 provides the policy for separation of Reserve Component officers not on active duty.  Resignations will be submitted through appropriate channels to the commander authorized to take final action.  Authority to take final action on unqualified resignations submitted by non-obligated Army Reserve officers is delegated to the Commander, AR-PERSCOM.

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, it is concluded:

1.  There is no evidence of record to support the applicant's contention that he was misled about his Army Reserve status.  His appointment order clearly stated that it was for an indefinite term, his ORB clearly showed his component as Army Reserve, and his separation orders and DD Form 214 clearly show that, as an Army Reserve officer, he was being released from active duty and assigned to the IRR, not discharged.

2.  Notwithstanding the advisory opinion of AR-PERSCOM, there is no legal process, which allows an Army Reserve officer to lose his indefinite appointment upon release from active duty, even if he is beyond his obligated service, unless he or she is involuntarily discharged or an unqualified resignation is approved.

3.  There is no evidence of record that the applicant ever inquired about or requested vacation of his Army Reserve warrant officer appointment while he was on active duty or since he has been assigned to the IRR.  He is not prohibited from submitting a request for unqualified resignation as a current member of the IRR.

4.  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.

5.  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

__sc___  ___hf__  ___ra_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002073805	
SUFFIX		
RECON		
DATE BOARDED	20021126	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	136.00	
3.		
4.		
5.		
6.