ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20170008327 APPLICANT REQUESTS: * reconsideration of correction of his records to show his mandatory removal date (MRD) as 1 March 2018 vice 1 June 2015 * reconsideration for promotion by a special selection board (SSB) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-Authored Statement * Army Board for Correction of Military Record (ABCMR) Denial * Letter in Response to ABCMR Denial * Legal Argument – X____ X____ X____ v. X____ X. X____ (U.S. Court of Appeals, 10th Circuit) * Article: Forbes: Bureaucrats May Be the Losers If Gorsuch Wins A Seat On Supreme Court * Article: Neil Gorsuch Sworn in as Supreme Court Justice * Harvard Law Review - The Rise of Purposivism and the Fall of Chevron: Major Statutory Cases in the Supreme Court * Title 10, U.S. Code (USC), section 14507 (Computation of Total Years of Service) * U.S. Army Human Resources Command (HRC) Portal Printout – Reserve/Retiree/Veteran Record (2) * Article: New Pentagon Budget Calls for Smaller Army, Pay Changes * Article: Soldiers Survive Combat, Then Lose Their Jobs * Article: Panel Approves Troop Reductions, Not Benefits * Article: Lawmakers Blast U.S. Army Force Cuts * Article: Details of the Military Force Reduction * Article: Army Headed for 30,000 Active and Reserve Cuts in 2016 * Title 10 USC 14706 , Figures 1-3: Computation of Total Years of Service * Memorandum, Subject: Computation of Years of Service Exclusion for Professional Specialty Branch Officers (2) 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 AR20150006174 on 9 May 2016. 2. In a self-authored statement, dated 19 April 2017, the applicant asserts the appeal of his case on the basis that it would be an injustice to the Army to not allow him to continue to serve. Given the elevation of Judge Neil Gorsuch to the U.S. Supreme Court and his scathing assessment of Chevron in X____ X. X____, he believes it is less likely that the Court will continue to rubber stamp a plausible argument from a government agency regarding statutory interpretation. Rather than give bureaucrats a perfunctory approval, the Court will probably look for the most reasonable interpretation for the statutes. He requests reconsideration and the relief and recalculation of his MRD to exclude his time in law school as well as the exclusion of the time elapsed beginning with his break in service. Additionally, he requests an SSB for promotion reconsideration. 4. The applicant provides: a. A copy of the ABCMR’s Board Record of Proceedings, dated 9 May 2016, which explains the Board’s reason for denying his application. b. A self-authored letter in response to ABCMR’s denial of his application, dated 5 March 2016, which out of an abundance of caution and in the interest of candor before the tribunal, he withdraws his assertions regarding the law in his case. c. Legal Argument – X____ X____ X____ v. X____ X. X____ (U.S. Court of Appeals, 10th Circuit), No. 14-9585, dated 23 August 2016, a case that examines an executive agency exercising delegated legislative authority which seeks to overrule a judicial precedent interpreting a congressional statue. d. Article: Forbes - ‘Bureaucrats May be The Losers If Gorsuch Wins A Seat On Supreme Court’, dated 26 January 2017, which discusses Judge Neil Gorsuch’s concerns in regards to agencies that are under the control of the executive branch. e. Article: ‘X____ X____ Sworn in as Supreme Court Justice’, dated 10 April 2017, which describes Gorsuch’s fierce confirmation battle between the country’s two political parties. f. Harvard Law Review - The Rise of Purposivism and the Fall of Chevron: Major Statutory Cases in the Supreme Court, dated 10 February 2017, which explores the connection between the move toward purposivism or away from the case, Chevron U.S.A. Incorporated (Inc.) v. National Resources Defense Council, Inc., 467 U.S. 847 (1984). g. Title 10, U.S. Code (USC), section 14507 (Computation of total years of service), which provides a Reserve officer's years of service include all service of the officer as a commissioned officer of a uniformed service other than the following: service as a warrant officer, constructive service and service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree. h. U.S. Army Human Resources Command (HRC) Portal Printout – Reserve/Retiree/Veteran Record, dated 29 November 2014, which states his MRD date was 30 September 2020. i. HRC Portal Printout – Reserve/Retiree/Veteran Record, dated 28 February 2015, which states his MRD date was changed to 1 June 2015. j. Article: ‘New Pentagon Budget Calls For Smaller Army, Pay Changes’, dated 24 February 2014, which outlines the Pentagon’s plan to save money while emphasizing special operations and technology for the future by calling for a smaller Army, changes in pay and elimination of some venerable aircraft, weapons and bases. k. Article: ‘Soldiers Survive Combat, Then Lose Their Jobs’, dated 24 February 2014, which states that in an effort to thin the ranks under budget pressure, the Army will cut 3,000 troops by the end of the year. l. Article: ‘Panel Approves Troop Reductions, Not Benefits’, dated 30 April 2014, which states a House committee on military personnel has backed the Pentagon’s request for troop cuts. m. Article: ‘Lawmakers blast U.S. Army Force Cuts’, dated 8 July 2015, which states lawmakers’ plan to denounce the U.S. Army plan to cut 40,000 troops by 2018. n. Article: ‘Details of the Military Force Reduction’, dated 28 October 2015, which explains the details of the U.S. military’s decision of forced cuts for the overall reduction to federal budget constraints. o. Article: ‘Army Headed for 30,000 Active and Reserve Cuts in 2016’, dated 19 November 2015, which describes that in the coming year, manning levels would be reduced by 30,000. p. Title 10 USC 14706, Figures 1-3: Computation of Total Years of Service, which provides statutory language, plain meaning, and application to cases for the purpose of computing a reserve officer’s years of service. q. Memorandums, Subject: Computation of Years of Service Exclusion for Professional Specialty Branch Officers (2), dated in 2003 and 2005, sent to the Military Personnel Law Branch requesting legal review of the applicant’s request for recomputation of his MRD. 5. A review of the applicant’s service records shows: a. The applicant was born in December 1964. Having had prior enlisted Reserve service, he was appointed as a Reserve commissioned officer and executed an oath of office on 17 May 1987. He was assigned to the 47th Military Intelligence (MI) Detachment in Morgantown, WV. b. On 15 May 1988, he was awarded a Bachelor of Arts degree from WV University, Morgantown, WV. He successfully completed the MI Officer Basic Course in December 1988. c. On 17 May 1992, he was awarded a Doctor of Jurisprudence Degree (JD) from WV University, Morgantown, WV. d. He entered active duty on 5 July 1993. He successfully completed the Judge Advocate General (JAG) Officer Basic Course on 24 March 1993. e. On 10 September 1993, he was promoted to rank of first lieutenant in the JAG Corps with an adjusted date of rank of 11 December 1991. f. He progressed through the ranks, but was not selected for promotion to Major (MAJ) and on 1 September 2001, he was released from active duty and transferred to his USAR unit. He completed 8 years, 1 month and 27 days of active service. g. He was promoted to MAJ on 2 May 2004 in the USAR. He served on active duty as a member of his Reserve unit from 21 August 2005 to 13 June 2006. During this period of service, he served in Kuwait/Iraq from 3 October 2005 to 14 May 2006. h. He entered active duty as a Reserve officer on 1 May 2010 and was promoted to lieutenant colonel (LTC) on 6 August 2010. He was honorably released from active duty on 30 April 2011 and he was transferred to his USAR unit. i. He entered active duty as a Reserve officer on 30 April 2011. On 30 September 2014, he was honorably released from active duty and transferred to the USRR Control Group. He completed 3 years and 5 months of net active service. j. According to his DA Form 2B (Personnel Qualification Record), dated 1 December 2014, under Section II, Service Data, his Mandatory Removal Code was B (maximum length of service) and the MRD was 30 September 2020. k. Per his Separation Orders 15-072-00011, dated 13 March 2015, he was assigned to the Retired Reserve, effective 15 June 2015. 6. On 15 September 2015, the Army Review Boards Agency received an advisory opinion from the Office of the Deputy Chief of Staff, G-1, which recommended disapproval of the applicant’s request to change his MRD to 1 March 2018. a. The G-1 states the applicant performed his initial service in the Ready reserve with assignment to the MI Corps, i.e. outside the specialty that would have resulted from an educational delay, had he been serving under such delay. b. On 17 May 1992, he was awarded his JD and continued serving in the MI Corps until he reported to active duty with appointment as JAG Corps officer on 5 July 1993. Therefore, G-1’s position is that the applicant’s service during attendance at law school is not excludable under the provisions of the section 14706 and his mandatory removal date was properly corrected on 1 June 2015. 6. On 24 February 2016, the applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. His response, provided on 6 March 2016 states: a. After further review and reconsideration of the pertinent law, he withdrew his assertion regarding the law in the case. He asserted his appeal solely on the basis that it would be an injustice to the Army to not allow him to continue to serve given his recent experience and latest mobilization history. b. He adds that after additional consideration, he can conceive of a reasonable argument that the government could make regarding examination of Title 10 USC 14706(a)(3) and Title 10 USC 14706(b) together in such a way that would make the government’s material assertions about the law correct in this matter. 7. By law, Title 10 USC 14706 (Computation of Total Years of Service) states: a. Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed serve other than: (1) service as a warrant officer (2) constructive service (3) service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service ion the Ready Reserve in the specialty that results from such a degree (b) The exclusion under subsection (a)(3) does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready reserve in other than a student status for the period of service preceding the member’s service in a student status. 8. By law, promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. Promotion boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling. . BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the G1 advisory’s finding and, in the Board’s opinion, insufficient justification outlined within the applicant’s rebuttal to override that G1 finding, the Board concluded that there was no evidence of an error or injustice which would warrant making a change to the applicant’s military service record. As a result of those findings, the Board also concluded there was no justification to have the applicant’s record appear before a SSB (as nothing within the record changed). 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. REFERENCES: 1. Title 10, U.S. Code (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 14507 (Removal from the Reserve active-status list for years of service: Reserve lieutenant colonels and colonels of the Army), states unless continued on the Reserve active-status list under section 14701 (needs of the service) or 14702 (as a condition of technician employment) of this title or retained as provided in section 12646 (18 year retention to 20 years for retirement eligibility) or 12686 (retention for non-regular retirement eligibility) of this title, each Reserve officer of the Army who holds the grade of colonel who is not on a list of officers recommended for promotion to the next higher grade shall be removed from the Reserve active-status list under section 14514 (transferred to the retired reserve if qualified) of this title on the first day of the month after the month in which the officer completes 30 years of commissioned service. (Note: Section 14507 was enacted by Congress on 1 October 1996 which superseded instruction in the Army Regulation 140-10 at the time that provided an adjusted MRD for officers promoted to COL of five years from the date of promotion. From that date on, the maximum MRD for all reserve officers is at 30 years of commissioned service except as provided for by Title 10, USC, section 14701.) 3. Title 10, USC, section 14514 (Discharge or retirement for years of service or after selection for early removal), states that each Reserve officer of the Army, who is in an active status and who is required to be removed from an active status or from a Reserve active-status list, as the case may be, under section 14507 (failure selection for promotion), 14508 (failure selection for promotion), 14704 (qualitative removal), or 14507 (maximum 30 years commissioned service) of this title (unless the officer is sooner separated or the officer’s separation is deferred or the officer is continued in an active status under another provision of law), in accordance with those sections, shall: (1) 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 (2) be discharged from the officer’s Reserve appointment if the officer is not qualified for transfer to the Retired Reserve or has requested (in accordance with regulations prescribed by the Secretary concerned) not to be so transferred 4. Title 10 USC 14706 (Computation of total years of service) states: (a) Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed serve other than: (1) service as a warrant officer (2) constructive service (3) service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service ion the Ready Reserve in the specialty that results from such a degree (b) The exclusion under subsection (a)(3) does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready reserve in other than a student status for the period of service preceding the member’s service in a student status. 5. Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. Chapter 7 provides for removal of officers from active status. Paragraph 7-2 provides for removal due to length of service. Officers and enlisted Soldiers will be removed from active status when they complete the specified years of service. Colonels are to be removed on the first day of the month after the month in which the officer completes 30 years of commissioned service. Exceptions may be made to allow an officer to become eligible for non-regular retired pay or to meet the needs of the Army. Colonels selected for, and who voluntarily accept, continuation on the Reserve active-status list under provisions Title 10, U.S. Code section 14701, will be retained for the continuation period, but not beyond the last day of the month in which the officers completes 35 years of commissioned service. 6. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR. This regulation states promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling. ABCMR Record of Proceedings (cont) AR20170008327 7 1