IN THE CASE OF: BOARD DATE: 12 June 2018 DOCKET NUMBER: AR20180006468 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 12 June 2018 DOCKET NUMBER: AR20180006468 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: * correction of his military records to validate a missing DA Form 71 (Oath of Office), dated 6 August 1990, with an effective date of 15 September 1990 * reinstatement of retirement points from 15 September 1990 to 28 May 1994 as granted by the U.S. Army Human Resources Command (HRC) in 2016 * adjustment of his date of rank (DOR) for promotion to first lieutenant (1LT) to reflect the actual time in grade (TIG) served, i.e., 17 February 2004 * adjustment of his DOR for promotion to captain (CPT) to reflect the actual TIG served, i.e., 2 June 2008 * adjustment of his Mandatory Removal Date (MRD) to permit the completion of 20 "good years" of service, not to exceed 31 August 2026 2. The applicant also requests a personal hearing before the Board. 3. The applicant states: a. He was commissioned in the Regular Army as a second lieutenant (2LT) on 28 May 1986. After 18 months TIG, he was promoted to 1LT. On 15 May 1990, he was informed that he would not be retained on active duty, but was given the option to accept an Army Reserve commission. Since he did not know where he would eventually reside after leaving Fort Knox, he opted not to select a specific reserve unit, but rather to accept appointment into the Individual Ready Reserve (IRR). He was sworn in during his out-processing on 6 August 1990, and was placed on terminal leave through 15 September 1990. At that point, he should have been transferred from active duty into the IRR. b. Between 1990 and 2000, he followed all instructions that he had been given when sworn in as an Army Reserve Officer, namely to retain his uniforms and identification card, and to report all changes of address to the Army Personnel Center (ARPERCEN) (now HRC). The latter was done in 1991 (Lynbrook, NY), 1994 (Atlanta, GA), and 1997 (Heidelberg, Germany). He also used his Reserve identification card to access military facilities in all three areas. The only direct response he ever received from contacting St Louis was in the form of a National Defense Service Medal sent to his New York address sometime in 1991. c. The fact that he performed no active or inactive duty while assigned to the IRR is irrelevant; his orders and service obligations were fulfilled simply by remaining available for recall. Additionally, he was able to access his personnel file online until approximately mid-2000, at which point he was residing overseas and assumed he was no longer retained in the IRR. Watching from the sidelines back in the U.S. while his classmates were being deployed multiple times became intolerable, so in late 2009, he called HRC to request transfer to a reserve unit. He was then informed that he had been "archived." In December 2009, he submitted a DA Form 61 (Application for Appointment) to request reappointment to the Army Reserve. On 17 August 2010, he was reappointed as a 1LT with a pay entry basic date (PEBD) of 30 April 2006 and 1LT DOR of 30 October 2007, corresponding to 18 months' TIG. Both dates were set by HRC based on incomplete records. Thinking his IRR service through 2000 had been incorrectly excluded, he requested this Board review his reappointment grade in 2011 under Docket Number AR20110010028, but in fact this was the wrong question. He did not request replacement of the missing DA Form 71. The Board denied his request. d. He later discovered that the original DA Form 71 from out-processing and most other Army Military Human Resource Record (AMHRR) documents from 1986-1990 were missing from the Veterans Administration (sic) records used for his reappointment. He does not recall ever receiving a copy after signing the Oath of Office. This accounts for why his reappointment grade and service credit did not include any IRR service. Although he never resigned his Reserve commission, he was not educationally qualified to be promoted to major (MAJ) in the IRR, and would likely have been separated sometime around 1999 as a result. Regardless of the missing DA Form 71, there is substantial evidence that he accepted the appointment and was duly sworn in. This evidence consists of: (1) DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his appointment and transfer into the IRR. Accompanying the document is an excerpt from Army Regulation (AR) 635-5 (Separation Documents), which outlines the rules for entries that were placed into Blocks 9 (Command to which Transferred) and 18 (Remarks) on the form. When an officer's separation type is discharge and he accepts a U.S. Army Reserve (USAR) appointment without troop program unit (TPU) assignment, Block 9 should (and in fact does) state "USAR Control Group (Reinforcement)." For such Soldiers being transferred into the IRR, Block 18 should (and in fact does) state "Subject to Active Duty Recall and/or Annual Screening." (2) Separation Orders 127-104, dated 2 July 1990, assigned him to the IRR and instructed that he would execute the Oath of Office, which took place at Fort Knox on 6 August 1990. (3) He was further issued a red DD Form 2A (Reserve) Identification Card with an INDEF (indefinite) expiration date on 6 August 1990. Department of Defense Instruction (DODI) 1000.13, paragraph 6.1.2, states that this card is to be issued only to Reserve members not on active duty. It would not have been provided had he been completely separated from the military. He retained this card until his reappointment in August 2010, at which time he was required to surrender it in return for a new common access card. e. Based on that evidence and guidance from HRC Personnel Actions Branch, Army Reserve leadership reconstructed the missing DA Form 71 on 22 January 2013, and entered it into his permanent AMHRR. The accompanying memorandum explained the rationale behind reconstructing the document. The Board is now asked to validate this reconstructed document, or to grant constructive credit for it in his records. Once the replacement DA Form 71 was placed into his AMHRR, he was encouraged by acquaintances at the office of his local Congressman to request a new review by the Secretary of the Army. As a result, his records were partially corrected on 29 February 2016. He received a response from the HRC Leader Development Division that adjusted his PEBD to 17 August 2002, and granted him an additional 55 points, plus 8 months and 12 days of credit towards retirement. He has attached the November 2017 copy of his DA Form 5016 (Chronological Statement of Retirement Points) that shows such correction. f. Despite this correction, records afterwards still showed his DOR for 1LT as 30 October 2007, which corresponded to over 62 months from 2LT to 1LT, instead of the actual 18 months it took. His DOR for CPT remained 15 February 2012, representing 51 months and 16 days recorded TIG as a 1LT. In mid-2016, his European Command leadership requested HRC review both DORs. They were later informed that this action could only be approved through the Office of the Secretary of the Army. On 5 December 2017, his Member of Congress sent a follow-on letter to the Secretary of the Army, requesting that the DOR be revised based on the corrected timeline and actual TIG figures. These dates are 17 February 2004 for 1LT and 2 June 2008 for CPT. Retirement credit corrections made in 2016 were all reversed just after the Congressman's letter was sent, and he attempted to get this restored by HRC. On 11 April 2018, Brigadier General (BG) D__ S__, Director, HRC Officer Personnel Management Directorate, advised him to resubmit his requests directly to the Board. g. Finally, he requests the Board consider granting (or recommending the Secretary of the Army grant) an extension to his MRD to permit the completion of twenty "good years" of service. The requested extension date is 31 August 2026. It would be an injustice to correct the records in such a manner that he would no longer be able to continue serving in his functional area, or to gain a full Reserve retirement after completing his "second" military career. h. He recognizes that he was given a tremendous opportunity to make up for lost time when he was reappointed, and has done his utmost to earn that every day in uniform ever since. It is important to him that the Board understands that he serves because he loves what he does as an Army Reserve officer and truly believes in the mission; rank or status is not his primary motivation. 4. The applicant provides: * 1987 promotion orders to 1LT * 1990 Notification of Pending Discharge from the Regular Army * DA Form 41 (Request and Authority for Leave) * DD Form 214 * Extract of AR 635-5 * July 1990 separation orders * Armed Forces of the United States Military Identification Card * 1990 DA Form 71 * 2013 memorandum, subject: Reconstruction of Lost DA Form 71 * Letter to Member of Congress * November 2017 DA Form 5016 * Reconstructed DA Form 4187 (Personnel Action) * January 2018 DA Form 5016 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. The applicant is a West Point graduate. He was appointed as a Regular Army commissioned officer and executed an oath of office (DA Form 71) on 28 May 1986, at which time he would have incurred a 6-year military service obligation, 5 years of which he would have been required to serve on active duty. He completed the Armor Officer Basic Course. He served in Germany for 3 years and he was promoted to 1LT on 28 November 1987. 3. On 9 May 1990, he was notified that he was considered by a probationary selection board for retention but he was not among those elected for retention. He was advised of his options, including an appointment in the U.S. Army Reserve (USAR). 4. On 2 July 1990, Headquarters, U.S. Army Armor Center, Fort Knox, KY, published Orders 127-104 reassigning him to the Transition Center for separation processing, effective 15 September 1990. The order stated: * "Oath of office for USAR appointment will executed prior to your transition date" * "You are assigned to the U.S. Army Reserve Personnel Center (Reinforcement), St. Louis" 5. The applicant provides a DA Form 31 that shows he took terminal leave (now known as transition leave) from 7 August 1990 to 15 September 1990. 6. On 16 May 1990, the applicant acknowledged receipt of the notification memorandum regarding his discharge. Paragraph 2 of the acknowledgement memorandum stated “I desire an appointment in the U.S. Army Reserve. The following information is provided (If you do not desire an appointment leave blank):” and provided blanks in which to record the basic pay entry date and permanent home address. The applicant made no entries in the blanks provided in paragraph 2. He acknowledged that his separation date had been established as 15 September 1990. 7. He was honorably discharged in accordance with paragraph 3-49g, AR 635-100 (Personnel Separations – Officer Personnel), in the rank of 1LT on 15 September 1990, due to reduction in authorized strength. His DD Form 214 shows he completed 4 years, 3 months, and 18 days of active service. It also shows in: * Item 6 (Reserve Obligation Termination Date), "00-0-00" * Item 9 (Command to Which Transferred), he was transferred to the USAR Control Group (Reinforcement), St. Louis, MO (i.e., the IRR) * Item 18 (Remarks), “Subject to active duty recall and/or annual screening” 8. There is no indication that he executed an oath of office for appointment in the USAR or that he was given a Reserve commission or that he was issued an appointment memorandum. There is no record of any military activity in the applicant's records after his honorable discharge from active duty in September 1990 (until August 2010). 9. After a break in service, on 16 December 2009, the applicant completed an Application for Appointment (DA Form 61) requesting an Army Reserve commission. The only prior service he listed on this form is his active duty service from 28 May 1986 to 15 September 1990. 10. He was appointed as a Reserve commissioned officer of the Army in the rank of 1LT and executed an oath of office (DA Form 71) on 17 August 2010, under Title 10, U.S. Code, sections 12201 and 12203. 11. On 20 August 2010, HRC published orders appointing him in the USAR and assigning him to the USAR Control Group (Reinforcement) effective 17 August 2010. He was further assigned to the Office of the Chief of Army Reserve on 26 August 2010. 12. On 25 April 2011, by email, an official at HRC Reserve Appointments and Accessions Branch stated the Reserve Appointments and Accessions Branch uses the provisions shown in Table 1-2 from section 1-9a of AR 135-100 (Army National Guard and Army Reserve - Appointment of Commissioned and Warrant Officers of the Army) when determining the grade for reappointment. This table applies to special branches. Officers are reappointed at the highest grade held. 13. On 8 June 2011, the Office of the Chief of Legislative Liaison dispatched a letter to the applicant's Member of Congress regarding a determination of the applicant's appointment grade. The official stated that: a. The proponent of AR 135-100, the Deputy Chief of Staff, G-1, verified that Table 1-2 is appropriate in determining the appointment grade for chaplains, in conjunction with paragraph 3-7, but it is not used when reappointing former commissioned officers as was the case with the applicant. b. Under Title 10, U.S. Code, section 12206, former commissioned officers may be appointed in the grade previously held and credited with service in grade for determining their DOR. The provisions of the statute are implemented within paragraphs 6.2.2.8 and 6.2.2 of DODI 1310.02 and 1312.03 respectively. c. Further, paragraph 1-9a(2) of AR 135-100 implements this guidance within the Army by indicating former officers will be appointed in the highest grade to which entitled under Title 10, USC, section 3359. It must be noted that the last provision in Title 10, USC, section 3359, was reenacted as Title 10, USC, section 12206, and became effective on 1 October 1996. d. Notwithstanding the applicant's DD Form 214 and reassignment orders indicating transfer to the USAR Control Group (Reinforcement), there is no evidence the applicant was appointed as a Reserve officer and actually placed in the control group subsequent to his discharge in September 1990. e. Based on paragraph 1-9a(2) of AR 135-100, the applicant was reappointed in the highest grade previously held and credited with the service he performed in that grade. As such, his DOR was adjusted to 30 October 2007. If the applicant is able to present proof of his appointment as a Reserve officer after his discharge from the Army in 1990, his DOR should be recalculated. 14. In May 2011, the applicant petitioned the ABCMR for correction of his military records as follows: * show he was transferred to the USAR Control Group (IRR) after his release from active duty on 15 September 1990 * Award 14 years of constructive service credit. * reappointment in August 2010 in the rank of major (MAJ) instead of 1LT 15. On 1 November 2011, following a thorough review, the Board unanimously denied the applicant's request, concluding there was no evidence indicating he served in any status after his discharge in September 1990 (until his reappointment in August 2010). 16. The applicant was selected for promotion to CPT on the 2012 Army Promotion List that was approved on 15 February 2012. Accordingly, on 1 March 2012, HRC published Orders B-03-201477 promoting him to CPT with an effective date and DOR as 15 February 2012. 17. On 22 January 2013, in a memorandum, subject: Reconstruction of Lost DA Form 71 for [Applicant], the Deputy G-3/5/7 Forward, Office of the Chief Army Reserve (OCAR), stated: a. The applicant, currently assigned to OCAR, processed through the Army Transition Point at Fort Knox, KY, on 6 August 1990. At that time, he was transferred from the Regular Army into the IRR. Despite being sworn in as a Reserve officer, the Oath of Office for that event was lost between Fort Knox and ARPERCEN St. Louis. The officer did not receive or retain a copy of the form at discharge. The attached reconstructed DA Form 71 replaces the missing form. b. The evidence for reconstructing the officer's missing DA Form 71 is as follows: (1) DD Form 214: This form was correctly completed in all aspects by the transition point, and corresponds to the officer's appointment and transfer to the IRR. AR 635-5, Table 2-1, Rule 3, states that when an officer's separation type is discharge and he accepts a USAR appointment without specific TPU assignment, Block 9 of the form should state "USAR Control Group (Reinforcement)". For a Soldier being transferred to the IRR, Block 18 should state "Subject to active duty recall and/or annual screening." (2) Separation Orders: The officer's orders clearly state in Additional Instructions that "(f) Oath of office for USAR appointment is to be executed prior to your transition date" and "(g) …assigned to the United States Army Reserve Personnel Center (Reinforcement)..." (3) DD Form 2A (Reserve): The officer was issued a red Reserve identification card with an INDEF expiration date at the time of his transition. DODI 1000.13 clearly states this card is to be issued only to Reserve members not on active duty. The officer retained this identification until he was required to turn it in for a common access card when transferring to his Individual Mobilization Augmentee position in August 2010. 18. On 24 February 2016, by letter to the applicant's Member of Congress, the Deputy Chief, HRC Leader Development Division, stated: a. This letter is in response to an inquiry, dated 10 February 2016, on behalf of the applicant, who desired assistance regarding recalculation of his commissioned service retirement points credit and pay entry basic date (PEBD). HRC has thoroughly reviewed the applicant's records and the supporting documents addressed in his inquiry. b. Based on HRC's findings, the applicant's retirement points, which he referred to as Commissioned Service Credit, and his PEBD were updated. His retirement point history now reflects that he has 10 qualifying years of service for retirement and his PEBD was updated to reflect 17 August 2002. This information will be reflected in the system of record not later than 29 February 2016. There were no changes made to his MRD. 19. The applicant is currently serving in the USAR. He has 11 years and 3 months of total qualifying service toward non-regular retirement (as of 1 June 2018). His MRD is 23 August 2024 (the day before he will reach age 60). 20. There is no evidence indicating he has submitted a request for extension of his MRD through his chain of command and through the Deputy Chief of Staff, G- 1, to the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) 21. The applicant provides: a. Chronological Statement of Retirement Points (DA Form 5016), dated 7 November 2017, that shows he accrued active duty points from 28 May 1986 to 15 September 1990, he received USAR membership points (15 per year) from 28 May 1991 to 27 May 1994, and he had a break in service from 28 May 1994 to 16 August 2010. b. A self-authored DA Form 4187 addressed from the applicant to HRC requesting DOR adjustments following official adjustment of his PEBD. His former PEBD was 30 April 2006 and it had recently been corrected to 17 August 2002. His DOR to 1LT was currently listed as 30 October 2007, reflecting his promotion at 18 months after original commissioning, but using the former PEBD. With the revised PEBD, this 18-month date was now 17 February 2004. His DOR for CPT was currently listed as 15 February 2012. The maximum TIG for 1LT is 5 years. With the revised PEBD and the above adjustment, this 5-year date was now 17 February 2009. He requested his DOR to 1LT be 17 February 2004 and his DOR to CPT be 17 February 2009. No one signed this form other than the applicant. c. Chronological Statement of Retirement Points (DA Form 5016), dated 9 January 2018, that shows he accrued active duty points from 28 May 1986 to 15 September 1990 and he had a break in service from 16 September 1990 to 16 August 2010. d. Armed Forces of the United States Reserve Components of the Army Military Identification Card showing an indefinite expiration date. The card was issued on 6 August 1990. REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-100, in effect at the time, provided the authority for the separation of commissioned and warrant officers from the Active Army. Paragraph 3-49 of the version of this regulation in effect at the time provided for involuntary release from active duty. Sub-paragraph 3-49g states when budgetary or authorization limitations require a reduction of officer strength, a Department of the Army Active Duty Board (DAADB) will be convened to determine which officers will be released from active duty. The Commanding General, PERSCOM (now HRC), The Judge Advocate General, Chief of Chaplains, or any of these offices, using prescribed criteria may be required to forward officer records, without recommendation, for consideration by the Board. Officers designated for release under this paragraph are not considered ineffective or substandard in duty performance. Their release is dictated by the needs of the Service. 3. AR 635-5 (2 October 1989), in effect at the time, prescribed the documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distribution of the DD Form 214. Item 9 of the DD Form 214 shows the command to which a Soldier is transferred, from Table 2-2 and is dependent upon the Soldier's type of separation. According to Table 2-2, when the type of separation is discharge (including resignation of Regular Army commissioned officers), and the service member accepts a USAR appointment, the entry is "USAR Control Group (Reinforcement or Annual Training), as appropriate." 4. AR 135-100, dated 1 February 1984, as amended with changes 1 through 12, through 1 June 1990, established responsibility and provided procedures for the appointment of commissioned and warrant officers in the Reserve Components of the Army. a. Paragraph 1-5 stated basic branch appointments will be limited per year to the total authorized by the DA Total Army Accession Plan. Commissioned officers are appointed to fill mobilization table of distribution vacancies on review of applications and Ready Reserve TPU vacancies. b. Paragraph 1-9(a) states if otherwise qualified, commissioned officer applicants may be appointed in grades indicated that subject to the requirements of this regulation, officers and former officers will be appointed in the highest grade to which entitled under Title 10, U.S. Code, section 3359. Table 1-2 of AR 135-100 shows the grade on appointment and required years of service: Commissioned Service Credit Appointment Grade Less than 3 years 2LT 3 years or more but less than 7 years 1LT 7 years or more but less than 14 years CPT 14 years or more but less than 21 years MAJ c. Paragraph 2-1 states applications for appointment will consist of many documents and forms for USAR TPU or IRR personnel, including a DA Form 61, recommendation by applicant’s commander, statement of clearance, and other related documents. Active duty personnel also must submit an application with a recommendation and other documents. d. Paragraph 2-1 states applications for appointments will be forwarded to the Commander, U.S. Total Army Personnel Command, now known as HRC. e. Paragraph 3-1 states applications of officers and former officers must meet the requirements in chapter 1 and be processed according to chapter 2. Applications will be sent to PERSCOM, Appointment Directorate, St. Louis, MO. This activity will conduct a review of the official military personnel file (OMPF). 5. Title 10, U.S. Code, section 12203 (Commissioned officers: appointments, how made, and term), states appointments of Reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officers, shall be made by the President alone. Appointments of Reserve officers in commissioned grades above lieutenant colonel and commander shall be made by the President, by and with the advice and consent of the Senate. Subject to the authority, direction, and control of the President, the Secretary concerned may appoint as a reserve commissioned officer any regular officer transferred from the active-duty list of an armed force to the reserve active-status list of a reserve component under section 647 of this title, notwithstanding the requirements of subsection (a). Appointments of Reserves in commissioned grades are for an indefinite term and are held at the pleasure of the President. 6. Title 10, USC, section 12206 (Commissioned officers: appointment of former commissioned officers), states under regulations prescribed by the Secretary of Defense, a person who is a former commissioned officer may, if otherwise qualified, be appointed as a Reserve officer of the Army, Navy, Air Force, or Marine Corps. A person so appointed may be placed on the Reserve active- status list of that armed force in the grade equivalent to the permanent regular or reserve grade, and in the same competitive category, in which the person previously served satisfactorily on active duty or in an active status; and may be credited for the purpose of determining date of DOR under section 741(d) of this title with service in grade equal to that held by that person when discharged or separated. 7. Title 10, U.S. Code, section 647 (Force shaping authority), states the Secretary concerned may, solely for the purpose of restructuring an armed force under the jurisdiction of that Secretary (1) discharge an officer described in subsection (b); or (2) transfer such an officer from the active-duty list of that armed force to the reserve active-status list of a reserve component of that armed force. The authority under this section may be exercised in the case of an officer who has completed not more than six years of service as a commissioned officer in the armed forces; or has completed more than six years of service as a commissioned officer in the armed forces, but has not completed a minimum service obligation applicable to that member. An officer of the Regular Army, Regular Air Force, Regular Navy, or Regular Marine Corps who is transferred to a Reserve active-status list under this section shall be discharged from the regular component concerned and appointed as a Reserve commissioned officer under section 12203 of this title. The Secretary concerned shall prescribe regulations for the exercise of the Secretary’s authority under this section. 8. DODI 1312.03 (Service Credit for Commissioned Officers) states that it is DOD policy that the award of service credit to any person appointed, assigned, or designated as a commissioned officer in an officer category shall be equitably determined to establish an appropriate appointment grade and DOR relative to other officers in the same competitive category. Paragraph 6.1.1 (prior active commissioned service credit) states credit for prior service as a commissioned officer may not exceed 1 year for each year of the following: a. 6.1.1.1. Active duty commissioned service or commissioned service in an active status (except as a commissioned warrant officer) including periods of active duty for training. b. 6.1.1.3. Commissioned service (except as a commissioned warrant officer) in an active status, but not on active duty, for persons appointed as Reserve commissioned officers. 9. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNG and USAR. a. Paragraph 2-5 states to be eligible for consideration for promotion to the next higher grade, an Army National Guard or USAR officer must have continuously performed service on either the Reserve Active Status List or the Active Duty List (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board, and must meet the TIG requirements in tables 2-1 or 2-3, as appropriate. b. Table 2-1 states the TIG requirement for commissioned officers to be considered for promotion from 2LT to 1LT is a minimum of 2 years in the lower grade and a maximum of 42 months in the lower grade. Consideration for promotion from 1LT to CPT requires a minimum of 2 years in the lower grade and a maximum of 5 years in the lower grade. 10. AR 140-1 (Army Reserve – Mission, Organization and Training) prescribes policy on the USAR mission, its organization, and training. USAR control groups provide control and administration for USAR personnel not assigned to TPUs. Control group designation will include the control group type. a. Control Group (Annual Training) consists of non-unit Ready Reserve Soldiers with a training obligation. They may be assigned to units by HRC and Control Group (IMA) consists of Ready Reserve non-unit Soldiers who are assigned to authorized augmentation positions documented on Active Army organization mobilization TDAs. b. Control Group (Reinforcement) consists of all other non-unit Ready Reserve Soldiers not assigned to another control group. Both obligated and non- obligated officers may be assigned to a USAR unit or IMA position. Non- obligated officers who do not accept assignment may be removed from an active status. 11. AR 140-185 (Army Reserve – Training and Retirement Point Credits and Unit Level Strength Accounting Records) sets responsibilities and procedures to establish and maintain retirement records prescribing the types of training and activities for which retirement points are authorized. It discusses the procedures for recording retirement point credits and training. Retirement points are awarded for membership, active duty for training, active duty, mobilization, correspondence courses (now removed), training, and other situations. Some of the source documents for retirement points include: * DA Form 1380 (Army Reserve Record of Individual Performance of Reserve Duty * DD Form 214 * DD Form 220 (Active Duty Report) * NGB Form 22 (Report of Separation and Record of Service) * Leave and Earnings Statements 12. AR 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. a. Reasons for mandatory removal of officers include non-participation, being twice passed over for promotion without being selected for continuation, reaching maximum years of commissioned service, and reaching maximum age (age 60). b. Commissioned officers may request exceptions to the regulatory removal requirement of age 60 submitted through the officer’s chain of command and Deputy Chief of Staff, G–1, to the ASA (M&RA) for approval. Each request must state a mission-based reason for the officer’s continued active status service and the officer’s chain of command must endorse. Each request must further indicate whether the officer will qualify for non-regular retirement at age 60 and whether the officer will attain their maximum years of commissioned service during the requested period. Requests for individual exceptions that do not state a mission- based reason must explain why the officer’s continued service is in the best interest of the Army, and such requests may only be approved by the ASA (M&RA) or the Secretary of the Army. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant appear to be sufficient to render a fair and equitable decision at this time. 2. The applicant requests correction of his records as follows: * validation of a reconstructed oath of office, dated 6 August 1990, with an effective date of 15 September 1990, that he claims was lost * reinstatement of retirement points from 15 September 1990 to 28 May 1994 as granted by HRC in 2016 * adjustment of his DOR for promotion to 1LT to reflect the actual TIG served, i.e., 17 February 2004 * adjustment of his DOR for promotion to CPT to reflect the actual TIG served, i.e., 2 June 2008 * adjustment of his MRD to permit the completion of 20 "good years" of service, not to exceed 31 August 2026 3. The applicant asks the board to validate an oath of office that was reconstructed over 20 years after his discharge in 1990. a. He served on active duty from 28 May 1986 to 15 September 1990. He was discharged from active duty on 15 September 1990. Although this DD Form 214 shows he had no remaining military service obligation, it appears that entry is an error as he had not yet completed the service obligation he incurred when he accepted appointment as a commissioned officer. It appears he was obligated to remain in service at least until 27 May 1992. As discussed further below, at one point HRC credited him with service in the IRR through 27 May 1994. b. The applicant’s discharge orders stipulated that the oath of office for USAR appointment would be executed prior to his discharge. His DD Form 214 listed the USAR Control Group (Reinforcement) in item 9. The regulation governing preparation of the DD Form 214 stated that when the type of separation is discharge (including resignation of Regular Army commissioned officers) and the service member will accept a USAR appointment, the entry in item 9 will be "USAR Control Group (Annual Training or Reinforcement)” as appropriate. c. If he took the oath of office for USAR appointment on 6 August 1990, the DA Form 71 completed at the time was not preserved. A memorandum notifying him of a USAR appointment in 1990 is not available. d. Retirement points are generally earned for service performed, to include membership points for those in the IRR (15 points per year). HRC credited him with retirement points between 15 September 1990 and 27 May 1994 but when an error was discovered (i.e., that there were no documents confirming that he was properly appointed as a Reserve commissioned officer), another correction was made to his statement of retirement points to remove the points. e. When he was discharged in September 1990, he had completed 4 years, 3 months, and 18 days of creditable active duty. Constructive service credit provides an officer with a grade and DOR that accounts for prior commissioned service. The applicant was appointed and executed an oath of office on 17 August 2010. He had served in the rank of 1LT from 28 November 1987 (date he was promoted) to 15 September 1990 (date he was discharged). His DOR was adjusted to 30 October 2007 to account for his prior 1LT commissioned service. The record shows that in 2011 the applicant, through a Member of Congress, was advised that if he could present proof of his appointment as a Reserve officer after his discharge from the Army in 1990, his DOR (for 1LT) should be recalculated. f. The Board must determine if a preponderance of the evidence supports a conclusion that he took a valid oath of office in 1990. A favorable recommendation with regard to the oath would provide a basis for crediting him with additional years of USAR service, crediting him with membership points for those years of service, and adjusting the DOR for 1LT he was given upon appointment in 2010. 4. He was considered and was selected for promotion to CPT on the 2012 Army Promotion List that was approved on 15 February 2012. Accordingly, HRC published an order on 1 March 2012, promoting him to CPT with an effective date and DOR as 15 February 2012. An adjustment to his DOR for CPT is not warranted because 15 February 2012 is the earliest DOR he can receive; it is the approval date of the board. 5. There is no evidence showing the applicant has submitted a request for extension of his MRD through his chain of command to the approval authority as required by AR 140-10. Because he has not exhausted this administrative remedy, this portion of his request is before this Board prematurely. If a request for extension of his MRD is disapproved through the process described in AR 140-10, he may submit a new application to this Board. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006468 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180006468 17 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2