MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  28 October 2003
	DOCKET NUMBER:  AR2002082159

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Marla J. Troup		Member	
	Ms. Linda D. Simmons		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 his transfer to the Retired Reserve be revoked and that he be reinstated in the US Army Reserve (USAR) Individual Ready Reserve (IRR) in order to serve until his Mandatory Removal Date (MRD) of 1 July 2004. 

APPLICANT STATES:  In effect, that his transfer to the Retired Reserve should be revoked and that he be reinstated in the IRR.  He was not properly briefed and informed about his obligations while serving in the IRR.  He was discharged from the Texas Army National Guard (TXARNG) and was pending reassignment to a USAR troop program unit (TPU).  However, while pending reassignment he 
believes that he was charged with "bad time" and was not awarded retirement points.  He was unable to locate a position due to a "freeze" in officer procurement invoked about the same time of his separation from the TXARNG.  In November 1997, he received notification by mail that he was discharged.  He contacted the Army Reserve Personnel Command (AR-PERSCOM) and inquired as to why he was discharged.  He informed AR-PERSCOM that he was not resigning and that he had located a position with a TPU, where he was currently serving.  However, those orders were revoked and he was reinstated in an active Reserve status.  

In the Summer of 2001, he discovered that the period between his discharge from the TXARNG and the IRR was improper.  However, not being properly debriefed prior to his separation, combined with the failure of the USAR to contact him with basic instructions, meant that he was not afforded the opportunity to acquire retirement points while waiting for a position within a TPU. He was charged with time-in-service, that was not good time because he did not earn retirement points.  

In the Fall of 2001 and the Spring of 2002, he began to resolve this issue through channels.  He felt that this action died at the division level, not due to complacency, but due to the enormous workload of full-time staff to manage so many soldiers.  Due to the limited time to his current MRD of 1 December 2002, he is requesting that this Board review his case to recover the time lost in his career and allow him to continue to serve the maximum allowed time by regulation.  In support of his application, he submits a copy of his separation orders, National Guard Form 22 (Report of Separation and Record of Service), and several documents from his military personnel file.

EVIDENCE OF RECORD:  The applicant's military records show he was appointed as a second lieutenant in the TXARNG effective 15 June 1974, at the age of 26, with prior military service.  His date of birth is 13 December 1947.  

He was promoted to major (MAJ/0-4) effective 14 January 1988.

On 7 October 1991, the Texas Adjutant General notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant’s age at 60 (20-Year Letter).

He was selected for promotion to lieutenant colonel (LTC/0-5) with an effective date of rank of 13 January 1995.  The applicant declined his promotion to remain in the ARNG.

He was honorably discharged from the TXARNG on 1 October 1995, in the rank of major to accept a promotion in the USAR.  He was transferred to the USAR Control Group (Reinforcement), IRR.  He was promoted to lieutenant colonel/0-5 on 2 October 1995.

On 17 September 1997, the applicant was honorably discharged from the USAR Control Group (Reinforcement).  On 25 November 1997, those orders were revoked.  There is no information in the available record to explain what caused the discharge action.

On 3 December 1997, orders were published releasing the applicant from the USAR Control Group (Reinforcement) and reassigning him to a TPU with an effective date of 28 November 1997.  His records show that he did not perform any training or duties that resulted in award of retirement points while assigned to the IRR.

The applicant was considered and not selected for promotion to colonel by the 2000 Reserve Components Selection Board (RCSB).  

On 8 May 2002, the applicant requested re-computation of his current MRD to his command based on his belief that he had a break in service.  He believed that he lost all constructive time between the TXARNG service and the date that he was reinstated in the IRR, a total of 15 months.  He was requesting that his MRD be recomputed to show his MRD as 1 October 2003.

On 23 August 2002, the applicant submitted additional information concerning his MRD recomputation.  He had been informed by AR-PERSCOM that an adjustment should have been made at the time of his reinstatement in the IRR and that his unit could make the adjustments.  There is no evidence that his request was ever responded to by his command.  

The applicant provided a copy of a memorandum, dated 28 October 2002, from the Commander, Headquarters, 11th Battalion Command and General Staff College (CGSC), Subject:  MRD Exception to Policy to this Board.  The commander indicated that the applicant had requested an exception to policy to remain in an active status in the Army Reserve.  It was discovered that he 

needed to submit a packet for correction of his records.  He requested an extension of his MRD due to the unique circumstances surrounding his discharge from the TXARNG.  The commander recommended that the applicant be extended in the USAR to support the transition to intermediate level education 
(ILE) which had grown by 9% in each of the last 2 years.  Their was a shortage of qualified instructors to execute the Pilot ILE program for The Total Army School System (TASS) and complete the Legacy CGSC course for phase I and II for students enrolled that year.  

On 26 November 2002, the applicant was released from his TPU and was transferred to the Retired Reserve, effective 1 December 2002, due to his maximum authorized years of service.

An updated Chronological Statement of Retirement Points was provided by the Chief, 90th Regional Support Team, AR-PERSCOM on 30 April 2003.  This statement shows that he had completed 30 years of creditable service for Reserve Retirement. 

Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  Paragraph 7-2 of Army Regulation 140-10, provides guidance on length of Reserve service.  It states, in pertinent part, that the actual removal date will be 30 days after:  (a) The individual completes 28 years of commissioned service if under age 25 at initial appointment or (b) the individual’s 53rd birthday if age 25 or older at initial appointment.  However, the implementation of the Reserve Officer Personnel Management Act (ROPMA) changed the removal date for lieutenant colonels to 28 years of service or age 60 whichever occurs earlier.

Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  

Section II of the same regulation pertains to transfer from the ARNG.  Paragraph 5-3 states that soldiers who are discharged from the ARNG remain Reserve of the Army soldiers.  It also states that orders would be issued for officers transferred to accept promotion and that assignment would be to the USAR Control Group (Reinforcement).

Paragraph 7-2 provides guidance on length of Reserve service.  It states, in pertinent part, that the actual removal date will be 30 days after:  (a) The individual completes 30 years of commissioned service if under age 25 at initial appointment or (b) the individual’s 55th birthday if age 25 or older at initial appointment.  

Title 10 United States Code, Section 14507(a) states that a lieutenant colonel must separate on the first day of the month after the month in which the officer completes 28 years of commissioned service, unless the officer reaches age 60.

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 evidence of record shows that the applicant was appointed in the TXARNG on 15 June 1974, at 26 years of age.  He continued to serve until he was honorably discharged from the TXARNG in the rank of major in order to accept a promotion in the USAR.  He was transferred to the USAR Control Group (Reinforcement) effective 1 October 1995 and promoted to LTC effective 2 October 1995.  

2.  It appears that the applicant was erroneously discharged on 17 September 1997 and the order was revoked on 25 November 1997.  This 68 day period did not result in harm to the applicant since he was not performing any duties for award of retirement points.  It is also noted that he should have been transferred to the Retired Reserve on his MRD of 30 June 2002 but was allowed to serve through November 2002.  

3.  He was released from his TPU and was transferred to the Retired Reserve effective 1 December 2002.  He is not entitled to reinstatement in the USAR due to his separation for maximum authorized years of service.

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

__rw___  ___mt__  ___ls_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002082159	
SUFFIX		
RECON		
DATE BOARDED	20031028	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20021201	
DISCHARGE AUTHORITY	AR .140-10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	1023	
2.		
3.		
4.		
5.		
6.