BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018201 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ___x_____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018201 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Awarding him 35 inactive duty points during RYE 19 September 2004 for a total of 50 creditable retirement points and 1 qualifying year for retirement. b. Awarding him 35 inactive duty points during RYE 19 September 2005 for a total of 50 creditable retirement points and 1 qualifying year for retirement. c. Awarding him 35 inactive duty points during RYE 19 September 2006 for a total of 50 creditable retirement points and 1 qualifying year for retirement. d. Awarding him 16 inactive duty points during RYE 19 September 2007 for a total of 50 creditable retirement points and 1 qualifying year for retirement. e. Paying him any pay he is due as a result of these corrections. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to his mandatory removal date. ___________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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018201 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 his mandatory removal date (MRD) be changed from May 2018 to May 2023. Additionally, he requests, in effect, credit for qualifying service for 2003, 2004, 2005, and 2006. 2. He states he would like to have his MRD adjusted by 5 years due to an error in his records as a result of a discharge and the subsequent revocation of that discharge years later. He received a discharge notification dated 22 August 2003. On 1 August 2006, he was promoted to major (MAJ) by a Special Selection Board (SSB) and received a date of rank of July 2003. The discharge orders prevented him from completing a good year in 2003, as well as in 2004, 2005, and 2006. 3. He provides: * self-authored statement * Orders D-08-331662, dated 22 August 2003 * Orders B-07-605457, dated 31 July 2006 * SSB Letter, dated 1 August 2006 * DA Form 5016 (Chronological Statement of Retirement Points), dated 20 September 2015 CONSIDERATION OF EVIDENCE: 1. On 5 May 1990, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT). He was ordered to active duty on 3 October 1990. 2. A memorandum, subject: Documentation of Service in Kuwait, dated 30 November 1991, certified that he served in Southwest Asia (Kuwait) from 27 August to 1 December 1991. 3. On 2 October 1992, he was promoted to first lieutenant and on 1 December 1994, he was promoted to captain (CPT)/O-3. 4. On 31 March 1996, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group. He was credited with completing 5 years, 5 months, and 28 days of active duty service. 5. On 18 November 1998, he was release from the USAR Control Group and appointed in the Army National Guard (ARNG). 6. On 6 August 2000, he was honorably released from the ARNG and transferred to the USAR Control Group - Reinforcement. 7. On 26 July 2001, he was notified that a Department of the Army Reserve Component (RC) Selection Board convened on 6 March 2001 to consider officers of his grade for promotion. He was considered but not selected for promotion by the board. 8. On 7 August 2003, he was notified that a Department of the Army RC Selection Board convened on 3 March 2003 to consider officers of his grade for promotion. He was considered but not selected for promotion by the board. As a result of this second nonselection, he was to be discharged in accordance with Title 10, U.S. Code, section 14513 or Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers). His established MRD was no later than 1 February 2004, unless he was eligible for and requested transfer to the Retired Reserve. 9. Orders D-08-331662, dated 22 August 2003, honorably discharged the applicant from the USAR effective 1 February 2004. 10. Orders B-07-605457, dated 31 July 2006, promoted the applicant to MAJ with an effective date and a date of rank of 17 July 2003. 11. On 28 August 2012, he was promoted to lieutenant colonel (LTC). 12. The applicant's Chronological Statement of Retirement Points shows he is currently credited with 13 years of qualifying service for a non-regular Reserve retirement. For the periods in question, his retirement year beginning 20 September 2003 to his retirement year ending (RYE) date 19 September 2007, the statement shows the following: a. During RYE 19 September 2004, he earned 15 membership points for a total of 15 creditable retirement points. b. During RYE 19 September 2005, he earned 15 membership points for a total of 15 creditable retirement points. c. During RYE 19 September 2006, he earned 15 membership points for a total of 15 creditable retirement points. d. During RYE 19 September 2007, he earned 15 membership points and 19 active duty points for a total of 34 creditable retirement points. 13. An advisory opinion was received from the U.S. Army Reserve Command (USARC) on 9 November 2016 in the processing of this case. The advisory official recommended partial approval. He stated: a. Title 10, U.S. Code, section 14505 (Effect of failure of selection promotion states), states a captain on the Reserve active-status list of the Army, Navy, Air Force, or Marine Corps or a lieutenant on the Reserve active-status list who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade and who has not been selected for continuation on the Reserve active-status list under section 14701, shall be separated in accordance with Section 14513 not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time. b. The applicant was not recommended for promotion to the next higher grade on the Fiscal Year (FY) 2001 and FY 2003 MAJ Army Promotion List (APL). Therefore, the U.S. Army Human Resources Command (HRC) issued orders discharging him from the USAR with an effective date of 1 February 2004. It was subsequently determined that his records contained a material error; therefore, he was considered and recommended for promotion by an SSB. On 17 July 2003, he was promoted to MAJ and HRC revoked his discharge orders. The orders reverted him back to his original Individual Mobilization Augmentee (IMA) assignment. c. Title 10, U.S. Code, section 14507 (Removal from the Reserve Active Status List (RASL) for Years of Service), states unless continued on the Reserve active-status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each Reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service. d. There was no error or injustice in the applicant's MRD calculation. LTC and colonel MRDs for maximum years of service in grade were revised due to implementation of Title 10, U.S. Code, section 14507, under the Reserve Officer Personnel Management Act (ROPMA), and the change applied to all commissioned officers, not just the applicant. Therefore, he was neither advantaged nor disadvantaged more than any other RC commissioned officer with a similar amount of commissioned service or in the same grade. e. In summary, the applicant was correctly discharged from the Army Reserve at the time he had been twice non-selected for promotion. There was a delay in correcting his records once the SSB notified him of the promotion. This affected his Unit Training Assembly (UTA) attendance and performance of his duties as an IMA officer. The USARC G-1 recommends disapproval of his appeal for correction to extend his MRD; however, it is in the best interest of the officer and the Army Reserve to correct his record to reflect retirement points from 1 February 2004 through 31 July 2006 for duties he would have performed if he had not been erroneously discharged. 14. On 14 November 2016, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. He did not respond. REFERENCES: Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former RC Soldiers. a. Paragraph 2-8 describes qualifying service as service performed in an active status in a RC or in active Federal service. After 30 June 1949, a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period of less than a full retirement year, a minimum number of retirement points must be earned to have that period credited as qualifying service. b. Paragraph 4-3 (Computation of service) states, in pertinent part, In determining the years for percentage purposes, credit of 1 day will be given for each point as follows: * One point for each day of active duty * Fifteen points for each full year of membership in an active status in a RC. A proportionate part of 15 points for any fraction of a year will be credited * One point for each authorized participation in drills or periods of instruction which conform to the requirements prescribed by the Secretary of the Army * Maximum allowable retirement points to include membership points that can be credited for inactive duty training (IDT) in an annual year: 30 October 2000 to 29 October 2007 (90 points) DISCUSSION: 1. The applicant requests his MRD be changed from May 2018 to May 2023. 2. The evidence of record shows the applicant was commissioned as a 2LT on 5 May 1990. In accordance with Title 10, U.S. Code, section 14507, as specified in paragraph 13c above, a LTC who is not on a promotion standing list will be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service. The applicant will complete 28 years of commissioned service on 4 May 2018. Therefore, his MRD is correctly calculated based on his grade and by law cannot be changed. 3. The applicant was discharged from the USAR effective 1 February 2004. However, on 31 July 2006, he was promoted to MAJ with an effective date and a date of rank of 17 July 2003 and he subsequently reverted to his original IMA assignment. 4. The evidence further shows from the time he was discharged (1 February 2004) until he was notified of his selection for promotion to MAJ by the SSB (31 July 2006), due to no fault of his own, he did not receive sufficient points for those years to be considered as qualifying service towards a non-regular retirement. The USARC G-1 recommends correcting his records to show that during the period 20 September 2003 to 19 September 2007, he was credited with sufficient inactive duty points to earn him a maximum of 50 retirement points for each retirement year for an additional 4 years of qualifying service for a non-regular retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018201 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018201 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2