IN THE CASE OF: BOARD DATE: 13 April 2020 DOCKET NUMBER: AR20190000091 APPLICANT REQUESTS: Correction of his record to show: * he was extended on active duty to meet his Military Service Obligation (MSO) * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DA Form 71 (Oath of Office Military Personnel), dated 15 June 2012 * Memorandum, Subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, United States Code (USC), Sections 12201, 12203, 2104, 2106 and 2107, dated 15 June 2012 * Orders Number 18-347-00032, dated 13 December 2018 * Memorandum for Record (MFR), Subject: Statement of Understanding for MSO, dated 20 December 2018 * Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions) FACTS: 1. The applicant states based on the enclosed references, his chain of command understands there is a mistake on how to proceed with his case granting him the opportunity to stay in the Service until reaching his MSO which is June 2020. He requests the Board help since he is currently mobilized under involuntary orders that activate him until 22 April 2019. Following the timeline provided in the discharge orders will hinder their mission and will create a hassle for his transition out of the Service. 2. A review of the applicant’s official records show the following: a. On 17 August 2010, the applicant enlisted as a non-scholarship Reserve Officers’ Training Corps (ROTC) cadet. DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract) was completed showing in section 3 (Additional Terms and Conditions), item 4(a) (Acceptance of appointment) he agreed to accept an appointment, if offered, as a commissioned officer in the U.S. Army Reserve (USAR), in accordance with governing regulations. He understood upon appointment, he would incur a MSO not to exceed eight years and cannot resign such appointment before completion. b. On 15 June 2012, having had prior enlisted service in the USAR the applicant was appointed as a Reserve commissioned officer in the Puerto Rico Army National Guard (PRARNG), and executed an oath of office. c. On 1 August 2014, the applicant was honorably released from the PRARNG and transferred to the USAR Control Group (Reinforcement). NGB Form 22 (Report of Separation and Record of Service) shows he completed 2 years, 1 month, and 17 days of net service. d. On 18 January 2017, Orders Number B-01-700255, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY, promoted the applicant to the rank/grade of first lieutenant (1LT)/O-2, effective on 2 August 2014. e. On 17 July 2017, Orders Number C-07-709598, issued by HRC, reassigned the applicant from the U.S Army Reserve (USAR) Control Group (Reinforcement) and assigned him to Headquarters and Headquarters Company, 448th Engineer Battalion, Fort Buchanan, PR, by voluntary request. f. On 2 May 2018, Orders Number BL-122-0024, issued by Headquarters, U.S. Army Garrison, Fort Bliss, TX, deployed the applicant in a temporary change of station status in support of Operation Enduring Freedom (CONUS Support Base) Fort Bliss, TX, for 355 days . g. On 1 November 2018, by memorandum, the applicant was informed he was a second time non-selection for promotion to the rank/grade of captain (CPT)/O-3, and he must be separated not later than the 1st day of the 7th month following approval of the board results unless he was a 1LT that had a remaining statutory MSO. He was advised to complete the attached Reserve status statement and election of options and return to Headquarters, 81st Regional Support Command no later than 1 January 2019. If his election of options was not received by the suspense, he would be discharged in accordance with the law. The attached memorandum was void of an election and the applicant’s signature. h. On 22 February 2019, Orders Number 053-0601, issued by Headquarters, U.S. Army Garrison, Fort Bliss, released the applicant from active duty and reassigned him to Headquarters and Headquarters Detachment, 210th Regional Support Group, PR. i. On 28 February 2019, the applicant was honorably released from active duty under the provisions of AR 600-8-24 (Officer Transfers and Discharges), paragraph 2-7, and transferred to his USAR unit. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 months and 8 days of net active service with 8 years, 1 month, and 19 days of prior inactive service. j. The applicant’s records are void of his initial consideration and non-selection memorandum for promotion to CPT. 3. The applicant provides: a. Memorandum, Subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, United States Code (USC), Sections 12201, 12203, 2104, 2106 and 2107 showing the applicant was appointed as a Reserve commissioned officer in the Corps of Engineers. The appointment was for an indefinite term. b. Orders Number 18-347-00032, issued by Headquarters, USAR Command (USARC), Fort Bragg, NC, honorably discharged the applicant from the USAR, effective on 1 March 2019, by reason of being twice non-selected for promotion to CPT. c. MFR, Subject: Statement of Understanding for MSO wherein the applicant states in pertinent part: (1) He understood upon his acceptance of a commission in the USAR, he incurred an obligation of eight years, regardless of any past service that he had. (2) On 13 December 2018, he received by mail an order from Department of the Army, Headquarters, USARC, discharging him from the service, effective on 1 March 2019. His source of commission is ROTC. The date of appointment for his commission is 15 June 2012 as shown in the oath of office. (3) The directions for the MSO as per AR 135-91 states that ROTC commissioned officers have an eight year MSO date from the date of appointment and not the date of enlistment. AR 135-91, table 2-1 states that Soldiers with an ROTC commission without scholarship and with prior military service, incur in an eight-year obligation and until the eighth anniversary of the appointment. (4) The eight-year obligation he incurred as stated in AR 135-91, table 2-1 started on 15 June 2012, the day of his appointment as a second lieutenant in the USAR. Therefore, according to the table 2-1, his MSO ends on 15 June 2020 and not 1 March 2019 as the discharge order states. (5) He respectfully requests, by this means, that AR 135-91 applies to his case and reconsider the decision for separation from the USAR and have the opportunity to finish his eight-year obligation as directed in the above mentioned source. d. AR 135-91, table 2-1 showing his MSO without an ROTC scholarship was until the 8th anniversary of appointment. 4. AR 135-91, paragraph 2-1 (Statutory obligation) states the statutory MSO incurred on initial entry into the Armed Forces by appointment after 1 June 1984 is an 8-year statutory MSO. The statutory MSO can be terminated by the Army prior to its fulfillment. Separation due to discharge from the Army terminates a Soldier’s statutory obligation. 5. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states in: a. Paragraph 4-30b(1) an officer who twice fails to be selected for promotion to the rank of CPT will be removed from an active status unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law. b. Paragraph 4-33 (Action resulting from nonselection) a 1LT on the Reserve active status list who has failed selection for promotion to CPT for the second time and whose name is not on a list of officers recommended for promotion to CPT, will be removed from active status not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time unless the officer can be credited with 18 or more but less than 20 years of qualifying service for retired pay. USAR officers will be discharged. 6. AR 15-185 (ABCMR) states 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge on 1 March 2019 as a result of being twice non-select for promotion. This properly terminated the applicant’s obligation and there is no basis to extend his service to his obligation expiration date of 15 June 2020. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions), paragraph 2-1 (Statutory obligation) states the statutory MSO incurred on initial entry into the Armed Forces by appointment after 1 June 1984 is an 8-year statutory MSO. The statutory MSO can be terminated by the Army prior to its fulfillment. Separation due to discharge from the Army terminates a Soldier’s statutory obligation. 2. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states in: a. Paragraph 4-30b(1) an officer who twice fails to be selected for promotion to the rank of CPT will be removed from an active status unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law. b. Paragraph 4-33 (Action resulting from nonselection) a 1LT on the Reserve active status list who has failed selection for promotion to CPT for the second time and whose name is not on a list of officers recommended for promotion to CPT, will be removed from active status not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time unless the officer can be credited with 18 or more but less than 20 years of qualifying service for retired pay. USAR officers will be discharged. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000091 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1