IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20170003613 APPLICANT REQUESTS: that, * his separation be reversed * his commission and Title 10 recognition be restored * he be placed back on active duty * his General Officer Memorandum of Reprimand (GOMOR) be removed from his record APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Release From Active Duty (REFRAD) Packet (13 pages) * Army National Guard (ARNG) Accession Packet (24 pages) * Secretary of Defense (SECDEF) Scroll documents * GOMOR, dated on or about 4 February 2013 * Memorandum For Whom it May Concern, subject: Request for General Officer Intervention to Correct Gross Negligence, dated 17 July 2017 * Memorandum For (Applicant), subject: Notice of Separation Due to Loss of Military Membership, dated 25 March 2016 * Excerpt from Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions), numbered pages 3 and 4 * Excerpt from Army Regulation 600-8-24 (Officer Transfers and Discharges), numbered page 43 * Excerpt from Army Regulation 601-100 (Appointment of Commissioned and Warrant Offices in the Regular Army), numbered pages 3 and 4 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant filed another ABCMR application, Docket Number AR20170011573, regarding the requested relief of removing his GOMOR from his record. Therefore, this contention will be addressed in that record of proceedings and will not be further discussed in this case. 3. The applicant states, in effect, that: a. He would like his separation process be referred to the Separations and Retirements Branch at Army Human Resources Command (AHRC) due to the erroneous nature of his separation and transition to the Reserve component. According to the AHRC's Call to Active Duty Program Office, the Army has a shortage of 225As [Warrant Officer - Military Occupational Specialty (MOS) – Information Systems Technician] in the grade of Chief Warrant Two (CW2). He meets the requirements and should not be on the sidelines while this shortage exists. b. There were several administrative mistakes that were made during his separation/accession that should have stopped the process. (1) His separation order should have placed him in the Individual Ready Reserve (IRR) before he was assigned to the National Guard. This was due to the fact he still had a military service obligation (MSO) that did not expire until 12 May 2017. (2) After an audit of his separation records it was discovered that he was marked as a two time non-select. This could not be accurate because his DD Form 214 (Certificate of Release or Discharge from Active Duty), with a separation date of 1 December 2015 occurred before his second promotion board, which was scheduled to be convened in April 2016. (3) His in-service recruiters signed off on the quality control section of his accession packet and administered his Oath of Office (DA Form 71) without receiving permission from AHRC. This was deceiving to him and did not support the Army values and denied him the right to make a sound career decision based on accurate information. (4) His DD Form 214 should not have a unit of assignment in block 9 (Command to Which Transferred). (5) Paragraph 9, of the REFRAD template he provided and that was approved by AHRC states: "If I am requesting or required to accept a Reserve appointment and the appointment has not been approved by the appropriate authority within 10 days of my REFRAD date, the effective date of my release will be adjusted by Army Human Resources Command in 30 day increments until the appointment is approved." This quality ensuring procedure was not enforced by AHRC, his transition center, or his in- service Reserve recruiting team. (6) At the moment, the in-service Reserve recruiting office, III Corps at Fort Hood, Texas has not produced evidence that his DA Form 71 was sent to AHRC after his oath was administered for their approval. c. The reason his Federal recognition for Reserve appointment had been withheld was due to the GOMOR he received in 2013. He believes this should not have been a reason for disqualification for Reserve service due to the fact that a suitability board (sic) determined that he should be retained in the service. d. In April 2015, he engaged the in-service Reserve recruiting office, III Corps at Fort Hood, Texas about transferring into the Texas National Guard (TXARNG). He started his transition process early so that I could receive as much information as possible in order to make a good decision for his career and family. He depended on these recruiters to guide him successfully through his transition from Active to Reserve service with no break in service. He justified his request to leave active duty to his chain of command based on the information/paperwork he was given by the in-service recruiting office. At no point during his eight month long recruitment and accession process was he ever informed that he may not be eligible for Reserve service. Subsequently, he has been released involuntarily from the TXARNG due to the decision to withhold Federal recognition by the Officer Accessions Branch (OAB) at AHRC. At the time of his release, he had been employed by the TXARNG for three months, was in good standing and had no indication that he was ineligible to serve. This also caused him to lose his DA civilian job that was dependent on his ARNG membership. 4. Having had prior enlisted service in the U.S. Air Force and Regular Army, the applicant accepted an appointment upon completion of the Warrant Officer Candidate Course as a Reserve Warrant Officer of the Army, on 12 May 2009, for a six-year commitment. He was ordered to active duty as an Information Systems Technician on the same date. Subsequently, he was promoted to CW2 on 12 May 2011. 5. A memorandum from the Reserve Component Transition Officer, III Corps, Fort Hood, Texas, dated 31 March 2015, shows the applicant received an initial Reserve Component briefing that completed the requirements for an unqualified resignation packet. It further shows his MSO as 11 May 2017. 6. In a memorandum, dated 8 April 2015, the applicant requested an unqualified resignation from active duty effective 1 September 2015, or as soon as practical. He stated his desire to continue to serve in the ARNG and to pursue civilian employment. He further stated he desired to be appointed as a commissioned warrant officer in the ARNG upon his REFRAD. Subsequently, his chain of command recommended approval and forwarded the request to AHRC on or about 5 June 2015. 7. A memorandum, dated 11 August 2015 from Joint Force Headquarters, Texas Military Department extended the applicant an official notice that he was selected to fill a Logistics Management Specialist (GS-11) position, contingent upon his assessment into the Texas Military Forces and hiring documents. He acknowledged his acceptance of the notice on 27 August 2015. 8. A document, dated 28 August 2015, from Chief, Officer Retirements and Separations, AHRC, subject: Unqualified Resignation, approved the applicant's request for an unqualified resignation, effective 1 March 2016. It further noted the resignation notice constituted an acceptance of a Reserve appointment. 9. A memorandum from the SECDEF shows an appointment scroll was approved effective 18 September 2015 for the applicant in the grade of CW2. 10. A memorandum from OIC, Operations Team, OAB, AHRC, subject: Regular Army to United States Army Reserve (USAR) Transition, dated 23 September 2015, notified the applicant of the following in reference to his requested separation from active duty: a. If you had an un-served obligation of four years or less, you must continue your Military Career in some form of USAR service (i.e. IRR active or inactive, TPU, IMA, AGR, or NG). You must notify this office of your preferred Reserve continued service no later than 30 days prior to separation. b. If you do not have an obligation but wish to continue your military career you must notify this office of your preferred Reserve continued service no later than 30 days prior to separation. c. Notification of your desired Reserve continued service should be forwarded to the Officer Personnel Management Division (OMPD), OAB. Once all required information is received, the OAB will determine eligibility for USAR appointment in accordance with Army Regulation 135-100 (Army National Guard and Army Reserve – Appointment of Commissioned and Warrant Officers of the Army). If approved for USAR appointment you will be notified of the requirements to complete your Reserve transition. If disapproved, you will receive memorandum notification of USAR appointment denial. d. If you do not wish to continue your military career send a notification e-mail stating you wish to decline this appointment to OPMD, OAB. 11. A document, dated 15 October 2015, from Chief, Officer Retirements and Separations, AHRC, subject: Separation Date Change, approved the applicant's request to change his separation date to 1 December 2015. 12. Orders 288-0150 issued by Headquarters, III Corps and Fort Hood, dated 15 October 2015, discharged the applicant from the Regular Army effective 1 December 2015. Subsequently, a memorandum amended these orders with additional instructions assigning him to "Division Signal Company (Non-EPLRS), Austin, Texas" within 30 days of his REFRAD. 13. The applicant was honorably discharged on 1 December 2015. The DD Form 214 he was issued shows he was separated under provisions of Army Regulation 600-8-24, by reason of miscellaneous/general reasons. He completed 6 years, 6 months, and 20 days of net active service. It further shows in: * Block 6 (Reserve Obligation Termination Date), the entry "00000000" * Block 9 (Command To Which Transferred), the entry "DIV SIG CO Non-EPLRS (WPDWC0) 2200 W. 35th Street Austin, TX 78703 14. A DA Form 71, dated 2 December 2015, shows he executed an Oath of Office in the grade of CW2 in the Reserve by the Reserve Component Transition Officer, CW3 D.G. Simultaneously, he executed an NGB Form 337 (Oaths of Office) for temporary Federal recognition in the TXARNG. 15. Orders 011-024 issued by the TXARNG, dated 11 January 2016, appointed him in the grade of CW2, effective 2 December 2015, and assigned him to "Signal Company, Headquarters and Headquarters Battery, 36th Infantry Division" as an Information Systems Technician. 16. A memorandum from Chief, Operations Team, OAB, AHRC, dated 15 March 2016, subject: Request for Reserve Commission, denied his request for a waiver to serve in the Army Reserve. 17. Orders 116-092 issued by TXARNG, dated 25 April 2016 separated the applicant from the ARNG effective 23 April 2016 for "failure to meet eligibility requirements for appointment." 18. His NGB Form 22 (National Guard Report of Separation and Record of Service), confirms he was honorably discharged from the TXARNG on 23 April 2016 under the provisions of NGR 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), paragraph 10-2a (10) by reason state license, special accreditation or qualification to include character investigation (proper level of security clearance) required by the warrant officer's MOS terminated, withdrawn, or not renewed. It further shows he completed 4 months and 22 days of net service this period. 19. A memorandum from Chief, Operations Team, OAB, AHRC, dated 10 February 2017, subject: Application Waiver in order to enable USAR Appointment as a Warrant Officer, denied his request for a waiver for USAR Warrant Officer service. 20. In the processing of this case, an advisory opinion was obtained on 25 November 2019 from the Chief, Officer Retirements and Separations Branch, AHRC. This official opined: a. The AHRC was unable to grant administrative relief in regard to (Applicant's) request. b. AHRC reviewed the applicant's REFRAD and request to serve in the TXARNG. (Applicant's) REFRAD request was submitted on or about 19 August 2015 and approved effective 28 August 2015 in accordance with Army Regulation 600-8-24. On 15 October 2015, upon approval of the officer's Reserve Commission, he requested a date change to separate on 1 December 2015. (Applicant) separated from active duty on 1 December 2015, and took the oath to serve in the TXARNG on 2 December 2015. c. AHRC, OAB submitted a request for congressional scroll on2 September 2015, which was approved by the Secretary of the Army effective 18 September 2015. While the officer was serving in the TXARNG a request for federal recognition was received by AHRC. While AHRC was researching the record, the OAB noticed the derogatory information and notified (Applicant) of a requirement to submit for a moral waiver. This waiver request was received by AHRC on 14 March 2016 and denied on 15 March 2016, after the officer was already serving in the TXARNG. (Applicant) was provided an opportunity to have a relook of his waiver, which was denied on 2 February 2017. d. AHRC is unable to provide the requested relief unless specifically directed by the Army Review Boards Agency. The officer is invited to apply to the Call to Active Duty Program. 21. A copy of the advisory opinion was forwarded to the applicant on or about 20 December 2019 for information and to allow him the opportunity to submit comments or a rebuttal. However, he did not respond. 22. The applicant provided the following documents, in addition to those documents discussed above: a. A memorandum from the Deputy Commanding General, Combined Joint Task Force, Bagram Airfield, Afghanistan, subject: General Officer Memorandum of Reprimand, dated on or about 4 February 2013. b. A Memorandum For Whom it May Concern from the applicant, subject: Request for General Officer Intervention to Correct Gross Negligence, dated 19 July 2017 (See attached). This memorandum gives a timeline of events and states in effect that: (1) He was not well informed of the information and instructions needed in order to make an informed decision about a transition from Regular Army to the Reserve. (2) He acknowledges not responding to the 23 September 2015 AHRC memorandum as he thought he did not have to because he had an MSO. c. A memorandum from the Human Resource Office, TXARNG, subject: Notice of Separation Due to Loss of Military Membership, dated 25 March 2016. This document informed him of his separation from technician employment as a result of his loss of military membership in the TXARNG with an effective date of 29 April 2016. d. Excerpt from Army Regulation 135-91, numbered pages 3 and 4, which includes a table for MSO for officers via different commissioning sources. e. Excerpt from Army Regulation 600-8-24, numbered page 43, that indicates the routing of officer resignations. f. Excerpt from Army Regulation 601-100, numbered pages 3 and 4, which indicates commissioning sources with service obligations for officers. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his resignation and entry into the ARNG, the identification of derogatory information and the denial of his request for waiver and his separation from the ARNG. The Board considered the review on conclusions of the AHRC advising official. The Board found no evidence of a removal of the derogatory information in his records. Based on a preponderance of evidence, the Board determined that the applicant’s separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-2 states the ABCMR will decide cases on the evidence of record. It is not an investigative body. 3. In accordance with the Army Human Resources Command (AHRC) website, the Call to Active Duty Program is available to IMA, IRR, TPU, AGR, and National Guard component officers. All applicants must possess current knowledge, skills, education, and/or experience in the area of concentration, or MOS, they are requesting. Interested Soldiers can review AHRC website for eligibility requirements and point of contact. 4. Army Regulation 135-91, dated 1 February 2005, in effect at the time, defines Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. a. The statutory MSO is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment. (1) On and after 1 June 1984, all soldiers incurred an 8–year statutory MSO. (2) Prior to 1 June 1984, most soldiers incurred a 6–year statutory MSO. b. The statutory obligation can be terminated by the Army prior to its fulfillment. Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminates a Soldier’s statutory obligation. The statutory obligation is not terminated however when the Soldier is separated for immediate reentry into the same or another military status. This includes an officer training program in which the Soldier has military status. 5. Army Regulation 635-8 (Separation Processing and Documents), dated 10 February 2014, provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. Chapter 5 contains specific guidance for preparation of the DD Form 214. It states for: a. block 6, indicates the completion date of the statutory MSO incurred by a Soldier on initial enlistment or appointment in the Armed Forces. The law (10 USC 651) requires a Soldier with no previous military service who enlisted or was appointed on or after 1 June 1984 to serve a period of 8 years. The MSO starts on the date of initial enlistment or appointment in the RA, ARNG, or USAR to include the Delayed Entry Program (DEP). DEP time is creditable in computing this date (see block 18 for additional requirements). For a Soldier discharged, dismissed, released from the custody and control of the Army or dropped from the Army rolls, or with an expired MSO, enter “0000 00 00”. Soldiers within 90 days of their MSO termination date at separation are considered to have completed their MSO; and b. block 9, to enter the applicable location dependent on the Soldier's status on termination of active duty (see table 5-1). For a discharge separation with a Soldier's status of accepting a USAR or ARNG appointment or enlists with specific TPU or ARNG unit assignment to enter the designation of the TPU or ARNG unit to which assigned. 6. Army Regulation 600-8-24, dated 12 May 2006, with rapid action revision dated 23 September 2011, in effective at the time, prescribes the officer transfers from active duty (AD) to the Reserve component (RC) and discharge functions for all officers on AD for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. a. Chapter 3 – Resignations. Any officer of the Active Army or USAR may tender a resignation under provisions of this chapter. The Secretary of the Army or his designee may accept resignations and orders will be issued by direction of the CG, HRC. An officer whose resignation has been accepted will be separated on the date specified in DA’s orders or as otherwise directed by the DA. b. Under normal circumstances, any RA officer or USAR Officer who has completed their 8–year MSO may submit a request for unqualified resignation, provided all Service Remaining Requirements (SRRs) have been met. Such application will be submitted not earlier than 12 months or less than 6 months prior to the requested separation date. The 6 month requirement may be waived by the Separation Approval Authority. Appropriate documentation must accompany the request. c. Any officer on AD (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending. d. Normally, resignations will not be accepted unless, on the requested date of separation, the officer has fulfilled the service obligation. An officer must serve in the Armed Forces until completion of statutory MSO. REFRAD under provisions of chapter 2 of this regulation does not terminate the MSO. An officer has an 8–year MSO. To waive an officer’s MSO, the ASA (M&RA) must find that the officer has no potential for service under conditions of full mobilization. Time spent as a cadet at the United States Military Academy or as an ROTC cadet does not count towards fulfilling the MSO. An officer who requests resignation before completing the 8–year MSO must agree to accept an indefinite appointment in the USAR to complete such service obligation. The act of taking the Reserve officer’s oath by an Active Army (AA) officer is sufficient to simultaneously terminate the officer’s RA status by operation of law. 7. Army Regulation 601-100, dated 21 November 2006, prescribes policy, eligibility requirements, and administrative procedures for the appointment of commissioned and warrant officers in the Regular Army (RA). a. An individual who accepts an RA appointment does not incur an additional AD service obligation (ADSO) as a result of accepting the appointment. b. Statutory and regulatory ADSOs otherwise incurred become effective on the date of acceptance of the RA appointment. WOs appointed with concurrent call to AD incur a 6-year ADSO upon completion of the Warrant Officer Basic Course. AD service obligations must be satisfied in accordance with Army Regulation 350–100 [Officer Active Duty Service Obligations] or other applicable regulations. c. In addition to the ADSO, every commissioned officer will serve a total MSO of 8 years in accordance with 10 USC 651 and Department of Defense Instruction (DODI) 1304.25. Any portion of the MSO not served on AD will be served in the RC per Army Regulation 600–8–24. A commissioned officer may fulfill the MSO with any combination of AD and service in an RC. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003613 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1