ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 October 2019 DOCKET NUMBER: AR20180009722 APPLICANT REQUESTS: correction of his Mandatory Removal Date (MRD) from 31 October 2019 to 16 January 2024 for the purpose of full active Military Service (MSO) of 28 years in current rank. Personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * DA Form 597 (Army Senior Reserve Officers’ Training Corps Student Contract), dated 20 September 1989 * DD Form 214 (Certificate of Release or Discharge from Active Duty), separation date 11 August 1992 * Defense Finance Accounting System (DFAS) Memorandum, RE: Request for Leave and Earnings Statement, dated 6 August 2015 * LES Archive Printout (9201 – 9601) * Orders 081-013 (Appointment Orders), effective date 17 January 1997 * NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement), dated 23 April 2018 * ARNG 1405 Worksheet (Title 10, U.S.C., Section 1405 Service Date), dated 21 February 2018 * AHRC Form 249 (Chronological Statement of Retirement Points), dated * 25 April 2015 * Extract AR 135-91 (ARNG and Army Reserve (USAR) - Service Obligations, Methods of Fulfillment, Participation Requirements) * Extract AR 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Records) * U.S. Army Human Resources Command (HRC), Establishing the Retirement Year Ending (RYE) Date FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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 states this is a request for correction of MRD for the purpose of full active MSO of 28 years in current rank due to non-fulfillment time in initial contractual obligation requirements. Reserve Soldier obligation is part of the statutory and/or contractual obligation which requires a Soldier to remain in satisfactory unit participation. This will also be an extension of the MRD for amending the current date from 31 October 2019 and adjusting the date to 16 January 2024. He is inquiring for the Army Reserve G1/USAR Control Group to provide official documentation to show the separation/discharge for the non-participation time of service. a. After completion of the Active Army (AA) resident Officer Basic Course (OBC) in 16 August 1992, he was reassigned to USAR Control Group to start the mandatory training requirement. For an unknown reason during the next five years, he was not appointed to a Troop Program Unit (TPU) to complete the eight year MSO for fulfillment as a commissioned officer from the Reserve Officers' Training Corps (ROTC) program. As stated in Army Regulation (AR) 135-91, chapter 2, table 2-1, note1, the non-prior service and completing the AA resident OBC without ROTC scholarship recipient. During this timeframe, from 16 October 1992 to 16 January 1997, for a total amount of 4 years, 3 months, and 0 days to be adjusted which he did not actively participate in any units. It is his understanding, a Soldier can be discharged before completing their statutory obligation. However, reentering in Reserve Component by appointment must voluntarily contract for the full term of service obligation. b. On 17 January 1997, he received appointment orders to the ARNG which he completed the non-fulfillment statutory/contractual obligation. For years, he was trying to reclaim the lost time of service. He contacted HRC to review and investigate his military status of the unserved portion. However, he was awarded to the inactive status list to retrieve years back. According to AR 140-185, chapter 1.8 (Establishment of anniversary year), a break in service occurs only when a member transfers to an inactive status list, the inactive ARNG, a temporary disability retired list, the Retired Reserve, or is discharged for longer than 24 hours. It requires reestablishment of the RYE date upon reentry into active reserve service. When a Service member with a break in service returns to an active Reserve status or to active service, the revised anniversary year start date will be the date of return or reentry. c. He is requesting endorsement from the Army Review Boards Agency (ARBA) for correction and to support him on recovering the 4 years and 3 months to his MRD for full active 28 years of service. 3. The applicant provides: a. DA Form 597, dated 20 September 1989, in which the applicant agreed and stated he understood the 8 year MSO he incurred. b. DD Form 214, separation date 11 August 1992, issued for completion of active duty training for Engineer OBC. c. DFAS Memorandum, RE: Request for Leave and Earnings Statement, dated 6 August 2015 and LES Archive Printout (9201 – 9601), which states no archive files were found for the date combination. d. Orders 081-013, effective date 17 January 1997, which appointed him in the ARNG. In addition, it listed his MRD as 1 November 2019. e. NGB Form 23B, dated 23 April 2018, which show a break in reporting dates. The highlighted portion of the form shows one entry with a begin date of 16 October 1992 and an end date of 16 January 1997. The reason for the break is shown as “non- military, civilian break.” The applicant computed the length of time for the break as 4 years and 3 months. f. ARNG 1405 Worksheet, dated 21 February 2018, which is a listing of inactive duty training (IDT) points earned while a member of the USAR that is used to increase the multiplier of a regular retirement. The total 1405 service credited to the applicant is 15 years, 2 months, and 11 days. g. AHRC Form 249, dated 25 April 2015, shows a period from 16 October 1992 to 16 October 1996 as inactive. h. Extract AR 135-91, paragraph 2-1 (Statutory obligation) which discusses that a statutory 8 year MOS is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment. Soldiers discharged before completing their statutory obligation. Soldiers reentering an active or RC of the U.S. Armed Forces by appointment or enlistment must voluntarily contract for a term of service. The term of service must be equal in length to the remainder of their unserved statutory obligation; however, the minimum length of a contractual obligation on reentry into military service is 1 year. i. Extract AR 140-185, paragraph 1-8 (Establishment of anniversary year) which discusses that The month and day for each successive anniversary year will not be adjusted unless the Servicemember has a break in service. A break in service occurs only when a member transfers to an inactive status list, the inactive ARNG, a temporary disability retired list, the Retired Reserve, or is discharged for longer than 24 hours. When a Servicemember with a break in service returns to an active Reserve status or to active service the revised anniversary year start date will be the date of return or reentry. j. HRC, Establishing the RYE Date, which discusses that a break-in-service occurs only when a member transfers to an inactive status list, the inactive ARNG, a temporary disability retired list, the Retired Reserve, or is discharged to civilian life for longer than 24 hours. If a break in service in excess of 24 hours occurs, and the Servicemember rejoins a service component, a new RYE is established on the date that member returns to an active reserve status or regular component. For Reserve Soldiers, the following inactive status categories constitute a break-in-service and require reestablishment of a new RYE date upon reentry into active reserve service: Inactive ARNG and Individual Ready Reserve Standby Inactive Control Group. 4. A review of the applicant’s service record shows: a. On 20 September 1989, he enlisted in the USAR as a cadet. Item 8 references DA Form 597, as provided by the applicant, for additional details of his enlistment. DA Form 597 contracted the applicant to the ROTC and an 8 year MSO. b. On 15 October 1991, he was discharged from the USAR Control Group (ROTC) to accept a commission in the Armed Forces. c. On 16 October 1991, he was appointed a Reserve commissioned officer of the U.S. Army and took the oath of office. In addition, he was reassigned to the USAR Control Group (Annual Training (AT)). d. On 11 August 1992, he was issued DA Form 1059 (Service School Academic Evaluation Report) for completion of Officer Basic Course and was processed for release from active duty. DD Form 214, separation date 11 August 1992, shows he was released from active duty training on self-terminating orders and issued an honorable discharge. He completed 4 months and 1 day of active service. e. On 15 October 1994, he was promoted to first lieutenant (1LT). f. NGB Form 62 (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG of the United States), dated 18 December 1996, item t (Record of All Military Service) (2) shows the applicant in the IRR from 11 August 1992 to 10 October 1996 with the USAR. g. On 17 January 1997, he was appointed in the ARNG and administered the oaths of office. Orders 081-013, dated 29 May 1997, item g (Mandatory removal date) is listed as 1 November 2019. h. On 9 June 1997, he was reassigned to the Minnesota ARNG. i. DA Form 2-1 (Personnel Qualification Record), item 34 (Record of Assignments) shows from 12 August 1992 to 16 January 1997 he was assigned to the “Officer Control Group (AT) (IRR) Not Active Duty”. j. On 17 January 1997, he deployed on a temporary change of station to Afghanistan. k. DA Form 5016, dated 22 September 2019, shows from 16 October 1992 to 16 January 1997 his status or component was listed as inactive. l. From 13 April 2015 to 12 April 2018, he was ordered to active duty as an Active Guard or Reserve. m. NGB Form 23B (ARNG Retirement Points History Statement), dated 15 May 2015, shows no points earned toward retirement from 16 October 1992 to 16 January 1997. n. 1405 Worksheet, dated 15 May 2015, shows no IDT points earned from 16 October 1992 to 16 January 1997. o. From 19 June 2017 to 31 August 2020, he ordered to active duty as an Active Guard or Reserve. 5. On 8 March 2019, the Case Management Division (CMD), ARBA requested an advisory opinion regarding the applicant and his request for correction of his MRD. On 14 June 2019, the Appeals & Analysis Section, National Guard Bureau (NGB) issued an advisory opinion in which they recommended disapproval of the applicant’s request. They stated: a. This office recommends that the Soldier be denied relief and that his MRD remain 1 November 2019. The Soldier’s assertion that his time in the USAR (AT) constituted a break in commissioned service is incorrect. Creditable years of commissioned service is defined in AR 135-180 (Qualifying Service for Retired Pay Non-Regular Service), paragraph 2-3 and appendix B. Service in the USAR (AT) is creditable toward years of commissioned service. Furthermore, while assigned to the USAR (AT) the Soldier was able to attend BOLC, as well as being selected for promotion to 1LT. If this time period was truly a break in service none of these actions would have been possible. b. The MRD Policy Program Manager for the U.S. Army Reserve Command (USARC) affirmed that although the Soldier’s assignment in the USAR (AT) was erroneous, it would still count toward his MRD as prescribed by 10 USC 14507 and AR 135-175 (Separation of Officers), paragraph 4-3a(3). He further affirmed that the Soldier will attain maximum years of commissioned service on 15 October 2018 with removal required not later than 1 November 2019. c. The NGB Human Resources Personnel & Officer Personnel and USARC G1 concur with this recommendation. d. The Washington DC ARNG concurs with this recommendation. 6. On 7 August 2019, the applicant replied to CMD, ARBA regarding the advisory opinion from the NGB. In his response, he states: a. The advisory opinion received on 14 June 2019 from NGB and USARC both testify he was not assigned to a TPU to complete the 6 years of mandatory training requirement as stated in AR 135-91, paragraph 2-1 thru 2-5 and table 2-1 . Both opine the time period between 16 October 1992 and 16 January 1997 are creditable and countable toward years of commissioned service without any yearly participation. Based on the facts of the AR, the unserved time does constitute a break in commissioned service. b. In the NGB advisory opinion, it discusses service in the USAR (AT) as creditable toward years of commissioned service. The USAR Control Group (CG) (AT) provides control and administration for USAR personnel that consists of a non-unit obligation with AT participation requirement for creditable years of services. A commissioned officer performs creditable years in an active status that training will be accomplished through AT and Active Duty Training (ADT) tours to provide refresher training, mission support, and professional development training to fulfill mobilization requirements furnished by Headquarters, Department of the Army. USAR CG (AT) also will not be credited toward a Soldier’s contractual obligation to serve in a TPU that is required by law to perform (see AR135-180, appendix B-1, AR 140-1 (Army Reserve Mission, Organization, and Training, paragraph 2-13 and 2- 14, AR 140-10 (Assignments, Attachments, Details, and Transfers) paragraph 4-25, and AR 135-91, paragraph 3-3a). He was never reassigned from Control Group (AT) to Control Group Reinforcement (Reinf) which would have occurred if he received three or more creditable service years and has no mandatory training obligation. A service member is not creditable having qualifying service years when a soldier is in an unassigned and inactive status. A USAR officer also must attain a minimum of 50 retirement points annually to be retained in an active participation in the reserve unit which is one requirement necessary to receive retired pay. During his gap years, he did not attain 50 points because he was not assigned by the anniversary of his RYE ending date. This should have been processed for removal from active status and discharged of failure to perform. (See AR135-91, paragraph 3-6, AR 135-175, paragraph 2-13, AR 135-180, appendix B-2, and AR 140-10, paragraph 7-1 and 7-4. As for being promotion to 1LT, the law establishes a 2 year minimum time in grade requirement for consideration for promotion to 1LT by the authority of the Secretary of Army but this is not verifying creditable years of service (see AR 600-8-29 (Officer Promotions)). c. In regards to paragraph d of the advisory opinion, members of the USAR will be removed from an active status for any suitable reasons with or without the officer's consent regardless of the length of commissioned service. A Soldier is being removed from an active status for non-participation will be discharged (see AR 135-175, paragraph 4-3a and AR 140-10, paragraph 7-1d.) His records reflect inactive status from October 1992 to January 1997 on the USAR retirement statement, which is not creditable toward length of service. A member of USAR who is in an inactive status category constitute a break-in-service and require reestablishment of a new anniversary year ending (AYE) date upon reentry into active Reserve service. Soldiers should also retain official source documents for all qualifying periods of service such as DD Form 220 (Active Duty Report) and DFAS orders indicating the purpose Service (DFAS) Form 702 (Leave and Earning Statements) with active duty/service orders of the contingency operation. Officer must hold a security clearance of at least secret when an officer fails to apply for a reinvestigation for a clearance, requires the initiation of discharge proceedings for that officer from the service (see AR 135-180, paragraph 2-1 (5), AR 135-175, paragraph 2-11, and DoDl 1215.07 (Service Credit for Non- Regular Retirement)). 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, the advisory opinion, and his rebuttal were carefully considered. Based upon the findings of the NGB advisory opinion and by the preponderance of the evidence, the Board agreed regulatory guidance and public law restricts him from serving past the contested MRD. The Board determined there was no error or injustice in this case. 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. X CHAIRPERSON Signed by: 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, 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 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 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. NOTHING FOLLOWS