IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150005320 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150005320 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150005320 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a review of his records to determine if he is eligible for sanctuary (18 year lock-in) for Reserve Soldiers serving on active duty. 2. The applicant states the U.S. Army Human Resources Command (HRC) Inspector General (IG) notified him that he had 18.21 years of active service. He was never notified that he met the requirements for sanctuary. The HRC IG told him applying to this Board is his only avenue of redress. 3. The applicant provides: * Letter from the HRC IG * Printout of retirement points * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Retired Reserve orders * 20-Year Letter CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born in January 1963. He would turn 60 years of age in January 2023. He was appointed as a Regular Army Air Defense Artillery officer and executed an oath of office on 23 May 1984. 3. He was honorably discharged from active duty for miscellaneous reasons on 31 August 1995 in the rank of captain. His DD Form 214 shows he completed 15 years and 2 months of active service during that period. This is in error and should show 11 years, 3 months, and 9 days. 4. After a break in service, he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 18 December 1995. He served in a variety of stateside or overseas assignments and he was advanced to colonel (COL). 5. On 31 August 2005, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 6. He has five additional DD Forms 214 which show he served extended periods (more than 90 days) of active duty as a Reserve commissioned officer on multiple occasions due to mobilizations: * 11 August 2003 to 10 August 2004; 1 year, Title 10, U.S. Code (USC), section 12302, Operation Enduring Freedom (OEF) * 7 July 2005 to 1 June 2007, 1 year, 10 months, and 25 days, Title 10, USC, section 12302, Operation Iraqi Freedom (OIF) * 4 February 2008 to 25 June 2008, 4 months and 22 days, Title 10, USC, section 12302, OEF * 1 August 2008 to 21 November 2009, 1 year, 3 months, and 21 days, Title 10, USC, section 12302, OIF * 29 April 2012 to 16 May 2013, 1 year and 18 days, Title 10, USC, section 12302, OEF 7. The total active service completed by virtue of the above periods of active duty due to mobilizations totals 5 years, 7 months, and 26 days. This active service does not include active duty for training or annual training completed as a member of his troop program unit(s). 8. On 27 March 2014, Headquarters, 99th Regional Support Command published Orders 14-086-00100 transferring him to the Retired Reserve, effective 31 May 2014, by reason of having reached maximum authorized years of service. 9. His DA Form 5016 (Chronological Statement of Retirement Points) shows he completed 28 years, 4 months, and 6 days of total qualifying service for non-regular retirement. 10. He provides a letter, dated 5 March 2015, from the HRC IG that addressed, in part, the issue that he had completed 18.21 years of active service and since he had reached 18 years of active service, he could request sanctuary. This would allow him to stay on active duty until reaching 20 years of active service. REFERENCES: 1. Title 10, USC, section 12686 (Reserves on active duty within 2 years of retirement eligibility: limitation on release from active duty) states under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve component who is on active duty (other than for training) and is within 2 years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary. 2. Memorandum, Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)), dated 11 August 2008, Subject: Management of Reserve Component (RC) Soldiers Retained on Active Duty for Sanctuary provided policy guidance for the retention, management, and utilization of RC Soldiers who attain sanctuary while serving on active duty (other than for training). Under the provisions of 10 USC 12686, sanctuary provides that a Reserve Soldier on active duty (except for training), including a member of the Retired Reserve recalled to active duty, who upon attaining 18 years, but less than 20 years of active service, may not be involuntarily released from active duty before the Soldier attains 20 years of active service unless the Secretary of the Army or his designee approves the release. DISCUSSION: 1. Sanctuary, commonly referred to as "18 year lock-in" is the term used for RC Soldiers who are mobilized, and have achieved at least 18 years, but less than 20 years of active federal service. The Sanctuary Program is a program that protects Soldiers from being forced to leave military service when they are close to attaining active-duty retirement eligibility. 2. The applicant in this case previously completed 11 years, 3 months, and 9 days of active service as an officer of the Regular Army. He was then appointed as a Reserve commissioned officer and served multiple tours of active duty, totaling 5 years, 7 months, and 26 days. He last served on active duty other than for training from 29 April 2012 to 16 May 2013. When he was released from this period of active duty, he had completed a total of 16 years, 11 months, and 5 days, not including active duty for training, annual training, etc. as shown below: 01-00-00 01-10-25 00-04-22 01-03-21 01-00-18 05-07-26 combined mobilization service 11-03-09 Regular Army officer service 05-07-26 combined mobilization service 16-11-05 total active duty creditable toward sanctuary (does not include any active duty for training) 3. Notwithstanding the misleading statement from the IG office that the applicant had 18.21 years of active Federal service and had attained sanctuary, he clearly did not attain 18 years of active Federal service creditable for attaining "sanctuary." //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005320 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005320 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2