IN THE CASE OF: BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150002807 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: 19 July 2016 DOCKET NUMBER: AR20150002807 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 to amend the decision of the ABCMR set forth in Docket Number AR20130022195, dated 4 February 2014. _______________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: 19 July 2016 DOCKET NUMBER: AR20150002807 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier request to correct the following orders to state, "The period of service under these orders is exempt from the 5-year limit as provided in Title 38, U.S.C. [U.S. Code (USC)], section 4312": * U.S. Army Reserve Personnel Command (AR-PERSCOM), St. Louis, MO, Orders R-09-006238, dated 13 September 1999 * U.S. Army Human Resources Command (HRC) (formerly AR-PERSCOM), St. Louis, MO, Orders R-08-578402, dated 24 August 2005 2. Counsel states: a. The Army Board for Correction of Military Records (ABCMR) has the authority to correct a record to remedy an error or injustice. The applicant seeks correction of these orders to reflect that he is exempt from the 5-year limit for retaining reemployment with the U.S. Postal Service (USPS). b. At all times relevant to this matter, the applicant intended to exercise his reemployment right under the Uniformed Services Employment and Reemployment Rights Act (USERRA) to rejoin the USPS. c. The applicant took a leave of absence from his career with the USPS as a letter carrier to serve on active duty in the U.S. Army Reserve (USAR). He reenlisted in the USAR in August for a period of 6 years. In September 1999, he was ordered to active duty in an Active Guard Reserve (AGR) status for a period of 3 years. His active duty commitment was amended to 5 years, 10 months, and 27 days in May 2002 with a release date of 21 August 2005. d. In late 2001, the applicant completed mobilization training for nearly 780 National Guard Soldiers from Kentucky and Minnesota. He routinely travelled on temporary duty orders during the missions. He also directly supported additional missions as a supply sergeant. As a result of his excellent performance, he was awarded the Army Achievement Medal for his support of the battalion for both peace time and mobilization missions. e. While serving as a supply sergeant, President Bush enacted Proclamation 7463 declaring a national emergency by reason of terrorist attacks on 11 September 2001. According to this proclamation, service performed by members who volunteer for active duty under Title 10, USC, section 12301(d), to support missions and operations associated with the national emergency are considered exempt from the USERRA 5-year limit on reemployment rights. f. The applicant was issued his notification of eligibility for retired pay at age 60 in May 2004. He executed an indefinite reenlistment in the USAR in August 2005. He was issued orders releasing him from active duty and discharging him for the purpose of immediate reenlistment in the USAR. g. As a result of his reenlistment, the USPS removed him from leave without pay status and eliminated his restoration employment rights. Both the USPS and the Department of Labor (DOL) denied the applicant's efforts for reemployment and declared that his service was not exempt from the 5-year limit because his service allegedly was not in support of missions and operations associated with the national emergency. h. The applicant retired from active duty on 30 June 2007 and was placed on the Retired List in the rank of sergeant first class effective 1 July 2007. He completed 7 years, 9 months, and 5 days of creditable active service, at all times relevant to the President's 26 September 2001 declaration of a national emergency and during the time period the United States was involved in two separate wars in Afghanistan and Iraq. His DD Form 214 (Certificate of Release or Discharge from Active Duty) stated he completed his first full term of service, but there is no entry indicating that he was ordered to active duty in support of a contingency operation under the provisions of Title 10, USC, section 12302, or Title 38, USC, section 4312. i. The applicant filed an application for correction of his military records to reflect his service was in support of missions and operations associated with the national emergency. The ABCMR denied his application in February 2014. 3. Counsel further states: a. The ABCMR incorrectly applied a narrow interpretation of Title 10, USC, section 12302(d), and Title 38, USC, section 4312(c), as a basis to deny the applicant's application for the correction of his military records. The ABCMR refused to consider the applicant's service either as a supply sergeant or as a recruiter were associated with a mission or operation in a national emergency. Instead, the ABCMR incorrectly applied an extremely narrow interpretation of the law and concluded the applicant's active duty was not in support of any specific operation. b. It is apparent the ABCMR rendered a decision denying the applicant's application based on a standard not required by the controlling statute. Neither Title 10, USC, section 12302, nor Title 38, USC, section 4312(c), requires showing the active duty service is in support of a specific operation. On the contrary, the controlling statues simply require a showing that the active duty is in support of missions and operations associated with the national emergency or other than for training under any provision of law because of a war or national emergency declared by the President or Congress as determined by the Secretary concerned. c. This narrowly-tailored interpretation of the controlling exemption statutes incorrectly excludes active duty members' service that would otherwise fall within the protections of the statute by not recognizing members' services that are in furtherance of operations and or missions associated with the national emergency. The applicant provided evidence documenting the nature and extent of his service in support of various missions and operations associated with the broader U.S. military mission during wartime. His service in the USAR occurred during wartime and after the President declared a national emergency. d. The applicant's active duty service, both as a supply sergeant and as a recruiter, was directly associated with the overall U.S. mission and operations of supplying, maintaining, expanding and mobilizing a sufficient armed force to respond to the national emergency and to provide support to protect the homeland. This service during a time of war cannot be disassociated with the U.S. military's wartime missions. e. For unknown reasons, the ABCMR failed to apply a plain reading of these controlling statutes to the applicant's case and instead incorrectly applied a narrow standard by adding language not included in the actual statute, which resulted in an unjust outcome. The ABCMR's decision that improperly relied on a standard that did not exist, demonstrates the error in the decision and mandates reconsideration of the applicant's application for the correction of his military records. f. The ABCMR failed to consider the evidence provide by the applicant that supports his assertion that his service in the USAR in 1999 and 2005 satisfied the requirements set forth in the controlling exemption statute. g. The facts demonstrate the ABCMR failed to properly consider the evidence that supports the applicant's assertion that his active duty service in an AGR status, both in 1999 and 2005, were in support of missions and or operations associated with a national emergency consistent with Title 38, USC, section 4312(c)(4)(a)(b), and, therefore, exempt from the 5-year limit for retaining reemployment. h. The applicant provided documentary evidence regarding his active duty status in 1999 and 2005 demonstrating his active duty in support of missions associated with a national emergency and consistent with the controlling exemption statute. He provided orders detailing his service as a supply sergeant and as a recruiter. i. As provided in the memorandum for the Assistant Secretary of the Army for Manpower and Reserve Affairs, dated 26 September 2001, the President declared a national emergency following the terrorist attacks on the World Trade Center and the Pentagon and ordered a partial mobilization of the Reserve force. Department of Defense Instruction 1205.12 (Civilian Employment and Reemployment Rights of Applicants for, and Service Members and Former Service Members of the Uniformed Services) and Title 38, USC, section 4312(c)(4)(a), stipulate that the Secretaries of the Military Departments and the Commandant of the Coast Guard make an exemption determination for those periods of active duty when a Service member is ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or Congress. j. When the applicant was assigned as a supply sergeant, his duties occurred post-9/11 from 5 November 2001 to December 2004 supporting various missions for the Department of the Army during wartime. The Department of the Army recognized his service and awarded him the Army Achievement Medal (AAM). His service in 2005 as a recruiter also occurred after the President declared a national emergency following the terrorist attack. In both instances, the applicant's active duty with the USAR occurred during wartime and in support of the broader U.S. mission by supplying, maintaining, and recruiting an active duty force in response to a national emergency and to support the mobilization of recruits to protect potential homeland targets from terrorist attacks. k. The applicant's duties as a supply sergeant included providing daily mission support for the unit, critical technical assistance, logistical support for military force operation mobilization for both the Army National Guard (ARNG) and the Army Reserve battalions in the unit's area of operations. He also directly supported additional missions as a supply sergeant for stability and support operation lanes. Moreover, he directly assisted in mobilization activities and 15 separate lane missions. l. When the applicant was assigned as a recruiter, he was recognized as the Top Army Reserve Recruiter for 2006 and the recruits he signed up were crucial to maintaining a sufficient Army force during a time of war and to carry out missions associated with the protection of the homeland. m. The applicant served his country with honor and distinction for years both in the Army Reserve and as a Federal employee with the USPS. He simply wants the ABCMR to recognize his service as a supply sergeant and recruiter during wartime was in support of missions and operations associated with a national emergency. This recognition will all him to preserve his reemployment rights with the USPS because his service would be exempt from the 5-year limit under USERRA. 4. Counsel provides: * letter from the ABCMR, dated 5 February 2014 * designation of representative, dated 20 January 2015 * ABCMR Docket Number AR20130022195, dated 4 February 2014 * Noncommissioned Officer Evaluation Report (NCOER) covering the period October 2002 through September 2003, page 1 * permanent change of station orders, dated 12 July 2001 * AAM orders * DD Form 214 * emails pertaining to instructions for an online application * online application CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130022195 on 4 February 2014. 2. Counsel provided orders, dated 12 July 2001, which show the applicant was serving on active duty in an AGR status and would proceed on permanent change of station to the 1st Battalion, 340th Regiment, in Arden Hill, Minnesota. 3. Counsel provided page 1 of the applicant's NCOER covering the period October 2002 through September 2003 which shows he was assigned to Headquarters, 1st Battalion, 340th Regiment, 2nd Brigade, 85th Division, in Arden Hills, Minnesota. This report shows his principal duty title as supply sergeant and his duties included: * provides daily mission support for the unit * serves as an observer controller/trainer for the ARNG and USAR battalions in the unit's area of operations * conducts assessments and evaluations for client unit Annual Training and inactive duty training * facilitates the after action review process and provides critical technical assistance * responsible for the accountability and safeguarding of over $2.5 million of both TDA and installation property 4. Counsel provided the applicant's AAM orders for outstanding service during the period 5 November 2001 to 31 December 2004. 5. Counsel also provided the applicant's DD Form 214 covering the period 26 September 1999 through 30 June 2007. 6. This documentation is new evidence that will be considered by the Board. 7. Having prior service in the U.S. Marine Corps, U.S. Marine Corps Reserve, Regular Army, and USAR, the applicant reenlisted in the USAR on 22 August 1999 for a period of 6 years. His expiration term of service (ETS) date was established as 21 August 2005. 8. AR-PERSCOM Orders R-09-006238, dated 13 September 1999, ordered him to active duty in an AGR status and assignment to the 301st Quartermaster Company, Grand Rapids, MI, as a supply sergeant under the provisions of Title 10, USC, section 12301(d), for an active duty commitment of 3 years beginning 26 September 1999. 9. AR-PERSCOM Orders R-09-006238A02, dated 22 May 2002, further amended his active duty commitment to 5 years, 10 months, and 27 days with a release from active duty (REFRAD) date of 21 August 2005 to establish simultaneous ETS and REFRAD dates. 10. On 12 May 2004, HRC issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 11. On 9 August 2005, he executed an indefinite reenlistment in the USAR. He indicated he understood that his reenlistment was for an indefinite period and he would be allowed to remain in an AGR status until he reached the retention control point for his grade (E-7) or maximum age, whichever came first. 12. HRC Orders R-08-578402, dated 24 August 2005, released him from active duty and discharged him for the purpose of immediate reenlistment in the USAR effective 9 August 2005. These orders stipulated: * he reenlisted and was ordered to active duty in an AGR status indefinitely * he was assigned to the USAR Recruiting Battalion, Des Moines, IA, as a recruiter * the authority for his active duty is Title 10, USC, section 12301(d) 13. He retired from active duty on 30 June 2007 and he was placed on the Retired List in the rank/grade of sergeant first class/E-7 effective 1 July 2007. His DD Form 214 for the period ending 30 June 2007 shows he completed 7 years, 9 months, and 5 days of creditable active service during this period. Item 18 (Remarks) shows: * he completed his first full term of service * no entry indicating he was ordered to active duty in support of a contingency operation under the provisions of Title 10, USC * no entry indicating deployed service in support of a contingency operation 14. On 2 October 2008, DOL notified him that the Veterans Employment and Training Services under Title 38, USC, section 4322, reviewed his claim against the USPS and found he was not eligible for reemployment rights. In making this determination, DOL officials reviewed his DD Form 214, military orders, and documents from his former employer. He had to have had no more than 5 years of active duty service to be eligible for reinstatement. He exceeded that by more than 2 years. He was not eligible for USERRA protection. 15. On 14 February 2011, DOL notified him that their office reviewed his Veterans Employment Opportunity Act complaint and determined he was not entitled to a veterans' preference. The determination was based on a letter from DOL, dated 2 October 2008, which stated he exceeded the 5-year limit by more than 2 years. This alone disqualified him from reinstatement eligibility under USERRA and veterans' preference. The USPS also found he was disqualified due to excessive moving violation(s) which applies to all applicants regardless of veteran status. REFERENCES: 1. The referenced Assistant Secretary of Defense memorandum, dated 26 September 2001, states, in effect: a. USERRA provides broad reemployment protections for members of the armed forces following periods of military service. However, there is a limit as to how long an employee can be absent from his/her civilian job to perform military duty and retain his/her reemployment rights. b. Title 38, USC, section 4312(c), sets a 5-year limit for retaining reemployment. However, certain duty is exempt from the 5-year limit. Section 4312(c)(4)(A) exempts service when involuntarily ordered to active duty under Title 10, USC, section 12302. Additionally, Title 10, USC, section 4312(c)(4)(B), exempts service for those members "ordered to or retained on active duty (other than for training) under any provision of law because of war or national emergency." c. Department of Defense Instruction (DODI) 1205.12 implements USERRA. Paragraph 6.6 requires the Secretaries of Military Departments to make an exemption determination for those periods of active duty when a Service member is ordered to or retained on active duty (other than for training) under any provision of the law because of war or national emergency. The DODI further states that if the Secretary determines that the purpose of the order to or retention on active duty is for the direct or indirect support of the war or national emergency, then the order of the Service member should be so annotated since the period of service is then exempt from the 5-year cumulative service limit. d. With Presidential Proclamation 7463, dated 14 September 2001, that declared a "National Emergency by Reason of Certain Terrorist Attacks," it would be appropriate to make a determination that the period of service performed by members who volunteer for active duty under Title 10, USC, section 12301(d), to support missions and operations associated with the national emergency is exempt from the USERRA 5-year limit. If such a determination is made, it would be helpful for the affected Service member to have a statement included in the orders that "the period of service under those orders is exempt from the 5-year limit as provided in Title 38, USC, section 4312(c)(4)(B)." 2. Title 10, USC, section 12301(d), provides that at any time an authority designated by the Secretary concerned may order a member of a Reserve Component under his jurisdiction to active duty or retain the member on active duty with the consent of that member. However, a member of the ARNG of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the Governor or other appropriate authority of the State concerned. 3. Title 38, USC, section 4312(c)(4)(A), provides that any person whose absence from a position of employment is necessitated by reason of service in the Uniformed Services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if the person (or an appropriate officer of the Uniformed Service in which such service is performed) has given advance written or verbal notice of such service to such person's employer; the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the Uniformed Services does not exceed 5 years; and, except as provided in subsection (f), the person reports to or submits an application for reemployment to such employer in accordance with the provisions of subsection (e). This subsection shall apply to a person who is absent from a position of employment by reason of service in the Uniformed Services if such person's cumulative period of service in the Uniformed Services, with respect to the employer relationship for which a person seeks reemployment, does not exceed 5 years, except that any such period of service shall not include any service performed by a member of a Uniformed Service who is ordered to or retained on active duty under Title 10, section 688, 12301(a), 12301(g), 12302, 12304, or 12305 or under Title 14, section 331, 332, 359, 360, 367, or 712, or ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress as determined by the Secretary concerned. DISCUSSION AND CONCLUSIONS: 1. Counsel contends the applicant's active duty orders should be corrected to show language that reads, "The period of service under these orders is exempt from the 5-year limit as provided in Title 38, USC, section 4312." 2. Counsel contends the ABCMR incorrectly applied a narrow interpretation of Title 10, USC, section 12302(d), and Title 38 USC, section 4312(c), as a basis to deny the applicant's application. 3. Counsel also contends the applicant's active duty both as a supply sergeant and as a recruiter was directly associated with the overall U.S. mission and operations of supplying, maintaining, expanding and mobilizing a sufficient armed force to respond to the national emergency and to provide support to protect the homeland. 4. The evidence shows the applicant was ordered to active duty under the provisions of Title 10, USC, section 12301(d) as follows: a. On 26 September 1999, he was voluntarily ordered to active duty for a period of 3 years in an AGR status with assignment to the 301st Quartermaster Company as a supply sergeant and not in support of any specific operation. His active duty service began prior to September 2001. His orders correctly show the authority for his active duty as Title 10, USC, section 12301(d). His orders were later amended extending his active duty commitment to a total period of 5 years, 10 months, and 27 days to align his REFRAD with his current ETS. This period of active duty was terminated by his discharge on 8 August 2005 for the purpose of immediate reenlistment. b. On 9 August 2005, he was ordered to active duty in an AGR status with assignment to the Des Moines Recruiting Battalion as a recruiter for an indefinite period in conjunction with his reenlistment, not in direct or indirect support of missions and operations associated with a national emergency. These orders correctly show the authority for active duty as Title 10, USC, section 12301(d). This period of active duty was terminated on 30 June 2007 by reason of his retirement due to sufficient service. 5. The issue presented is whether the orders placing the applicant on active duty in 1999 and 2005 covered periods of active duty service that were, or should have been, exempt from the 5-year cumulative limit on absences from civilian employment for purposes of USERRA. Each of his orders cites Title 10, USC, section 12301(d). Active duty service is excluded from the 5-year cumulative total if, among other exclusions, the individual is ordered or retained on active duty under any provisions of law because of war or national emergency declared by the President or Congress, as determined by the Secretary concerned. Neither of his orders contains language stating the Secretary of the Army determined the period of service under these orders is exempt from the 5-year limit as provided in Title 38, USC, section 4312(C)(4)(B). 6. In the applicant's case, he was voluntarily ordered to active duty in 1999 in an AGR status, not in support of war or national emergency. Likewise, his indefinite reenlistment on 8 August 2005 and subsequent continuation on active duty in the AGR Program were voluntary actions that were not in direct or indirect support of war or national emergency. 7. Although counsel asserts that "…President Bush enacted Proclamation 7463 declaring a national emergency by reason of terrorist attacks on 11 September 2001. According to this proclamation, service performed by members who volunteer for active duty under Title 10, USC, section 12301(d), to support missions and operations associated with the national emergency are considered exempt from the USERRA 5-year limit on reemployment rights," this assertion is unfounded. Presidential Proclamation 7463 makes no reference to Title 10, USC, section 12301(d). Furthermore, the proclamation does not address USERRA or any exemptions to the 5-year limit on absences from civilian employment. Consequently, Presidential Proclamation 7463 provides no support for counsel's claim. 8. The applicant's period of active duty service under either of the orders is not exempt from the 5-year limit as provided in Title 38, USC, section 4312. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) X 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002807 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2