ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20160011168 APPLICANT REQUESTS: Reconsideration of his earlier request for: * Re-instatement as an active duty U.S. Army Reserve (USAR) Officer * correction of his record with an opportunity to serve the required years of eligibility for retired pay upon reaching 20 Active Federal Service years APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Army Human Resources Command (AHRC) Form 249-E (Chronological Statement of Retirement Points) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100023383 on 3 May 2011. 2. The applicant states: a. A review of his records were conducted by the United States Army Reserve Command (USARC), Personnel Action Branch (PAB), Human Resources Command, Fort Knox, KY. After the review, the PAB discovered that he accumulated 18 years of Active Federal Service from 25 December 2010 to 8 June 2011 (sic), which is the date of his involuntary separation. b. In accordance with, Title 10 of the U.S. Code 12646, paragraph (a), a reserve commissioned officer who is credited with at least 18 years, but less than 19 years of service computed under this section may not be discharged or transferred from active status. Therefore his military records identified that he accrued at least 18 years of active duty service at the date of his discharge. a. 3. The applicant provides a copy of his AHRC Form 249-E, which shows from 7 September 1978 through 25 December 2010, he served 30 years, 5 months, and 15 days of qualifying service for retirement. 4. A review of the applicant’s service records showed: * 22 December 1980 – he was appointed as a USAR commissioned officer and entered active duty * April 1984 – he was relieved from active duty due to disapproval of request for extension of service and transferred to the USAR * 25 August 1996 – he was ordered to active duty in an Active Guard Reserve (AGR) status * 27 June 2011 – he was discharged as an AGR 5. On 2 February 2001, the USAR Personnel Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter notified him of the completion of required service and eligibility for retired pay upon application at age 60. 6. On 29 March 2007, the applicant's senior commander appointed per Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers), an investigating officer to investigate allegations of fraud, waste, and abuse in connection with Temporary Duty (TDY) travel by the applicant and another officer in his unit. The AR 15-6 investigation took place from 2 April 2007 to 29 May 2007. 7. In the AR 15-6 findings, dated 30 May 2007, the investigating officer states he found the applicant had engaged in fraud, waste, and abuse in the conduct of TDY. 8. On 26 June 2007, the applicant's senior commander reprimanded him, based upon the results of the AR 15-6 investigation. The General Officer Memorandum of Reprimand (GOMOR), stated the investigation disclosed that the applicant engaged in fraud, waste, and abuse. 9. On 3 July 2007, the applicant acknowledged receipt of the written reprimand and submitted a rebuttal on 23 July 2007 wherein he admitted he made mistakes and used poor judgment and accepted full responsibility for his actions. 10. On 17 October 2009, the Senior Commander, 90th Regional Readiness Command (RRC), North Little Rock, AR, ordered a Board of Inquiry (BOI) convened at Headquarters, 90th RRC, Little Rock, AR, under the provisions of AR 600-8-24 {Officer Transfers and Discharges) to determine whether the applicant should be administratively separated because of substandard performance of duty, misconduct and moral or professional dereliction, and in the interest of national security. The BOI determined the applicant engaged in acts of misconduct in that he committed numerous acts of fraud, waste, and abuse in conjunction with his TDY travel and recommended he be discharged from the USAR with a general discharge under honorable conditions. 11. On 29 October 2009, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant's request to remove the GOMOR from his OMPF. The DASEB found there was insufficient evidence to show the GOMOR was untrue and/or unjust. 12. The applicant's BOI was forwarded to the Army Review Boards Agency (ARBA) for further action. A Board of Review (BOR) was convened on 19 February 2010 to review the actions of the BOI which recommended his elimination. 13. The BOR recommended the applicant be eliminated from the U.S. Army with an under honorable (general) conditions characterization of service. 14. On 22 February 2010, the Deputy Assistant Secretary of the Army (Review Boards) [DASA(RB)] approved the BOR's recommendation to eliminate the applicant from the Army based on misconduct and moral and professional dereliction (AR 600-8-24, paragraph 4-2b) and substandard performance of duty (AR 600-8-24, paragraph 4-2a) with an under honorable (general) conditions characterization of service. 15. The applicant appealed the ABCMR because his current rank at the time was a Colonel and AR 600-8-24 required that all BOR members be general officers with at least one being an RC officer. This defect in the BOR's composition constitutes a denial of due process. 16. On 31 May 2011, the Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs (M&RA)) approved the Board’s recommendation to set aside his separation and directed a new BOR be convened. 17. On 8 June 2011, the new BOR recommended he be eliminated from the Army based on misconduct and moral and professional dereliction, and in the interests of national security and substandard performance of duty with an honorable characterization of service. 18. On 27 June 2011, the Assistant Secretary of the Army (M&RA), approved the BOR’s recommendation as stated above in #16. 19. The applicant’s record contains and he provides his corrected DD Form 214, as amended by his DD Form 215, which shows he was honorably discharged on 27 June 2011 under the provisions of AR 600-8-24, paragraph 4-2a, by reason of substandard performance, in the rank/grade of COL/O-6. It further shows he completed 14 years and 10 months and 2 days of net service this period, with 3 years, 11 months, and 14 days of prior active service, for a total of 18 years, 10 months, and 16 days. 1. 20. Orders Number C09-897077, dated 6 September 2018, placed the applicant on the retired list effective 1 September 2018. The applicant is 60 years old. 21. Title 10, U.S. Code 12646, paragraph (e) states: a. A reserve commissioned officer on active duty (other than for training) who, on the date on which the officer would otherwise be removed from an active status of this title is within two years of qualifying for retirement of this title may, in the discretion of the Secretary concerned be retained on that duty for a period of not more than two years. b. Paragraph a does not apply to officers who are discharged or transferred from an active status for physical disability, for cause, or because they have reached the age at which transfer from an active status or discharge is required by law 21. Based on the aforementioned, the Secretary of the Army, or his designee, elected not to retain him in the Army in order for him to complete 20 years of active federal service and directed he be honorably discharged. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The applicant requested reinstatement in order to obtain creditable service for retirement. The applicant’s record was adjudicated by a BOR and he was placed on the retirement list after his application to the ABCMR. Based upon the evidence that shows he was placed on the retirement list, the Board agreed his request for reinstatement in order to retire no longer has merit. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): Not applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 12646 a. If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 18, but less than 19, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 843, 1407, or 1409 of this title or chapter 21 of title 14, without his consent before the earlier of the following dates— (1) the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; (2) or the third anniversary of the date on which he would otherwise be discharged or transferred from an active status. (1) b. A reserve commissioned officer on active duty (other than for training) or full-time National Guard duty (other than full-time National Guard duty for training only) who, on the date on which the officer would otherwise be removed from an active status under section 8373, 14513, or 14514 of this title or section 740 of title 14, is within two years of qualifying for retirement under section 7311, 8323, or 9311 of this title may, in the discretion of the Secretary concerned and subject to paragraph (2), be retained on that duty for a period of not more than two years. An officer may be retained on active duty or full-time National Guard duty under paragraph (1) only if at the end of the period for which the officer is retained the officer will be qualified for retirement under section 7311, 8323, or 9311 of this title; and the officer will not, before the end of that period, reach the age at which transfer from an active status or discharge is required by this title or title 14. c. Subsections (a) and (b) do not apply to officers who are discharged or transferred from an active status for physical disability, for cause, or because they have reached the age at which transfer from an active status or discharge is required by law; or 3. 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. 4. 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. 5. AR 600-8-24 sets forth the basic authority for the separation of officer personnel. Chapter 4 establishes policy and prescribes procedures for separating members for misconduct; specific categories include moral or professional dereliction, or in the interests of national security, intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, and acts of personal misconduct unbecoming an officer. The final denial or revocation of an officer's security clearance by appropriate authorities and adverse information filed in the OMPF require an officer's record to be reviewed for consideration of terminating appointment. 1. 6. AR 600-8-24 further states the BOl's purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army. a. Paragraph 4-7 states boards will consist of at least three voting members and a recorder, legal advisor, and respondent's counsel without vote. The president of the BOI will be the grade of COL or above and senior in grade to the respondent. Other voting members will be Regular Army officers on active duty (unless the respondent is an RC officer) in the grade of lieutenant colonel or above and senior in grade and rank to the respondent. When the respondent is an RC officer, one or more of the voting members will be an RC officer, preferably the same component. b. Paragraph 4-17 (Board of Review) states an officer recommended for elimination by a BOI will have his or her case referred to a BOR. The BOR is appointed by the Secretary of the Army or his designee and has the same board composition as the 801 (the president of the BOR will be the grade of COL or above and senior in grade to the respondent). Other voting members will be Regular Army officers on active duty (unless the respondent is an RC officer) in the grade of lieutenant colonel or above and senior in grade and rank to the respondent. When the respondent is an RC officer one or more of the voting members will be an RC officer, preferably the same component. The BOR, after thorough review of the records of the case, will make recommendations to the Secretary of the Army or his designee as to whether the officer should be retained in the Army. When the BOR recommends a member's elimination from the Army, to include type of discharge and characterization, if applicable, the recommendation will be transmitted to the Secretary of the Army or his designee, who makes the final decision. //NOTHING FOLLOWS//