BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160005270 BOARD VOTE: ____x____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ 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: AR20160005270 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by retaining him on the reserve active status list as a lieutenant colonel and adjusting his mandatory removal date to 28 March 2020, provided all other eligibility criteria, as established by law and regulation, are met. _____________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: AR20160005270 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 adjustment of his mandatory removal date (MRD) in the New York Army National Guard (NYARNG). 2. The applicant states, in effect, in 2000, he was serving as a traditional M-Day Soldier [an ARNG Soldier who performs weekend drill only, and is not on full-time duty]. a. Because he was a two-time non-select for promotion to captain (CPT)/O-3, he was erroneously transferred to the Retired Reserve. This was done despite not having served the required time and not asking for this transfer. A special selection board (SSB) selected him for promotion to CPT and, on 2 October 2001, he was promoted and returned to duty. Between placement in the Retired Reserve and when he was returned to duty, his Federal recognition was revoked, and he was unable to serve as an infantry officer. b. He is asking that his current MRD of 30 April 2019 be adjusted by 335 days [from 2 November 2000 through 2 October 2001], changing it to 31 March 2020; which is the date his MRD would have been had he not been placed in the Retired Reserve. 3. The applicant provides: * memorandum, dated 16 May 2000, subject: Notification of Promotion Status * Orders Number 307-013, dated 20 November 2000 * National Guard Bureau (NGB) Special Orders (SO) Number 2 AR, dated 3 January 2001 * Orders Number 278-290, dated 5 October 2001 * memorandum, dated 4 September 2001, subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 31 May 2002 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. Having had prior enlisted service in the Florida ARNG and service as a cadet, the applicant was initially appointed as a Reserve commissioned officer in the U.S. Army Reserve (USAR) on 28 April 1991. [This date of initial commissioning established by law his MRD in the rank of lieutenant colonel as 27 April 2019.] 3. On 15 July 1998, he executed his oath of office and was appointed as a commissioned officer in the rank of first lieutenant (1LT) within the NYARNG. . 4. Memorandum, dated 16 May 2000, sent by the U.S. Total Army Personnel Command (later redesignated as the U.S. Army Human Resources Command (HRC)), subject: Notification of Promotion Status, informed the applicant he had not been selected for promotion to CPT a second time. Based on this, his established removal date was 1 November 2000, unless he was eligible for, and had requested, transfer to the Retired Reserve. 5. Orders Number 307-013, dated 2 November 2000, issued by the NYARNG, honorably separated the applicant, effective 1 November 2000, and reassigned him to the Retired Reserve. 6. Special Orders (SO) Number 2 AR, dated 3 January 2001, issued by the National Guard Bureau (NGB), withdrew the applicant's Federal recognition, and reflected his transfer to the Retired Reserve. 7. Memorandum, dated 4 September 2001, sent by HRC, subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, stated the applicant had been selected for promotion to CPT in the ARNG of the United States. The effective date of promotion was 18 April 2000. 8. SO Number 322 AR, dated 13 November 2001, issued by the NGB, revoked SO Number 3 AR, dated 3 January 2001. 9. SO Number 356 AR, dated 19 December 2001, issued by the NGB, showed the applicant was promoted in the NYARNG as a CPT, effective 18 April 2000. 10. The applicant is currently serving as a lieutenant colonel (LTC) in an Active Guard/Reserve status with the NYARNG. 11. An official from NGB provided an advisory opinion on 23 December 2016, essentially recommending approval. a. Discussion. (1) On 16 May 2000, a DA board notified the applicant (then a 1LT) that he was a two-time non-select for promotion to CPT. SO Number 2 AR was published on 3 January 2001; it withdrew his Federal recognition, and erroneously transferred him from the NYARNG to the Retired Reserve, effective 1 November 2000. (2) On 4 September 2001, he was notified of his eligibility for promotion based on an SSB; this board determined his non-selection to CPT was the result of an administrative error. The applicant was returned to duty on 3 October 2001, based on receiving orders. SO Number 326 AR, dated 19 December 2001, was published, promoting him to CPT, with an effective date of 18 April 2000. (3) Had he been promoted on 18 April 2000, as determined by the SSB, he would never have been separated on 1 November 2000. Because of the SSB results, SO Number 2 AR was revoked, and the NYARNG published Order Number 276-030, showing his assignment to an NYARNG unit effective 1 November 2000, which essentially corrected the break-in-service for the period 1 November 2000 to 2 October 2001 (335 days). Because this adjustment was made after the fact, and due to no fault of his own, the applicant was unable to complete any duty during this timeframe. As such, he could not achieve the qualifying points necessary for a good retirement year. (4) Because of the foregoing reason, the official recommended the Board extend his MRD by 335 days. Although he received the creditable service for pay purposes during the period 1 November 2000 to 2 October 2001, he did not have the ability to earn qualifying service for retirement purposes. It would be appropriate to grant his request as a matter of justice and equity. b. The advisory opinion was coordinated with the ARNG Officer Policy Branch, and the NYARNG concurred with the recommendation. 12. The Case Management Division, Army Review Boards Agency, provided the applicant a copy of the advisory opinion for review and comment. On 27 December 2016, the applicant concurred with the opinion. REFERENCES: 1. Title 10, U.S. Code, section 14507 (Removal from the reserve active-status list for years of service: reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy) (a) Lieutenant colonels and commanders of the Navy – 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 reserve active-status list) 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. 2. Title 10, U.S. Code, section 14701 (Selection of officers for continuation on the reserve active-status list) Consideration for Continuation – A reserve officer who holds the grade of lieutenant colonel or commander and who is subject to separation under section 14514 of this title may not be continued on the reserve active-status list under this subsection for a period which extends beyond the last day of the month in which the officer completes 33 years of commissioned service. 3. Title 10, U.S. Code, section 14513 (Failure of selection for promotion: transfer, retirement, or discharge) states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections (1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force; (2) be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve; or (3) if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment. 4. Army Regulation 135-175 (Separation of Officers), states, in chapter 4 (Discharge of Army Reserve Officers), when Federal recognition of ARNGUS officers is withdrawn for, among other reasons, reaching maximum age or maximum length of service, that officer will be discharged from Reserve status, unless qualified for, and has requested, transfer to the Retired Reserve. DISCUSSION: 1. The applicant requests adjustment of his MRD by 335 days, to 31 March 2020. He bases his request on the fact he was initially separated from the NYARNG due to non-selection for promotion, but was later promoted by an SSB. He claims this period was a break in service. While an adjustment was made in terms of pay, his MRD was never reset. 2. A commissioned officer's MRD is established by law based on their initial date of commissioning. For a lieutenant colonel, their MRD is at 28 years of commissioned service. As the applicant’s initial date of appointment as a commissioned officer was 28 April 1991, this date established his MRD throughout his career provided he attained the rank of lieutenant colonel. Therefore, based on his date of commissioning, his MRD at 28 years of commissioned service is 27 April 2019. 3. There is a provision of law that allows the Secretary concerned to extend an officer on the reserve active status list. For lieutenant colonels, the Secretary may extend an officer no more than 33 years from his or her date of initial commissioning. The evidence would support a recommendation to adjust the applicant’s MRD to 28 March 2020, thereby accounting for his 335-day break in service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005270 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005270 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2