ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 August 2020 DOCKET NUMBER: AR20190014922 APPLICANT REQUESTS: correction to her date of discharge from the Vermont Army National Guard (VTARNG). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with 2-page personal statement * Personnel Transcript, dated 3 March 1997 * Leave and Earnings Statement, 1 August 2019 to 31 August 2019 * Memorandum, Request for discharge from VTARNG, dated 21 April 1998 * Memorandum, Headquarters and Headquarters, 85th Brigarde,42nd Infantry Division (Mechanized), VT, dated 21 April 1998 * Nation Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), ending 8 May 1998 * DA Form 71 (Oath of Office – Military Personnel), dated 15 September 1998 * Orders 5-1-A-3, Headquarters, First Region (Reserve Officers'Training Corps (ROTC), U.S. Army Cadet Command (USACC), Fort Bragg, NC, dated 5 January 1999 * Memorandum, VTARNG, Office of the J1-Personnel, VT, memorandum, Subject: Request for Military Records, dated 1 May 2019, with the following enclosures: * NGB Form 590 (Statement of Understanding of Reserve Obligation and Responsibilities) * Annex A-DD Form 4 (Enlistment/Reenlistment Agreement-ARNG) * Annex B-DD Form 4 (Simultaneous Membership Program Agreement-ARNG) * Army Senior ROTC Nonscholarship Cadet Contract, signed 9 October 1996 * VTARNG, Office of the J1-Personnel, VT, memorandum, Subject: Request for Correction to Military Records, dated 19 August 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. Her discharge date from the VTARNG should be adjusted from 8 May 1998 to 15 September 1998; the day prior to her commissioning date. b. On 21 April 1998, she requested an anticipated discharge date of August 1998 in order to attend Army ROTC Advance Camp and summer school before meeting all requirements to commission. It was never her intent to be released from the VTARNG prior to her commissioning date. If the Board finds that her date of discharge from the VTARNG remains 8 May 1998, she will incur a significant debt. c. On 15 September 1998, she accepted a commission and entered active duty (AD) on 11 January 1999. While serving on AD, her original Pay Entry Basic Date (PEBD) coincided with her enlistment date of 9 October 1996. Subsequently, she left AD in September 2011 and had a break in-service until November 2012. Upon her reentry into the U.S. Army Reserves (USAR), her PEBD was adjusted to 21 December 1997 to reflect her 1 year, 2 months, and 9 days break in service. d. On 26 April 2019, during the completion of her Call to Duty packet, it was discovered her PEBD would need to be adjusted for being discharged from the VTARNG in May 1998. In accordance paragraph 2-13(e), Army Regulation (AR) 140- 10 (Assignments, Attachments, Details, and Transfers), dated 25 April 2018, SMP Soldiers who are simultaneously commissioned, and selected for AD may be retained in their unit pending entry on AD. Being discharged prior to her commissioning date was an error per regulatory requirements. e. Per memorandum from the VTARNG, their process is not to release a cadet until they receive all required commissioning documentation. They will only release upon receipt of documentation the day prior to the cadet commissioning. The VTARNG has exhausted all options to adjust her discharge date and have advised they will require a determination from the Army Board for Correction of Military Records (ABCMR) before such date could be adjusted. f. She contends that the intent of the letter she wrote to her company commander was to inform him that she was projected to commission at the end of the summer; therefore, not able to attend drill due to ROTC/Summer school requirements (June - August 1998). Based on this letter, her commander directed she be discharged from the VTARNG effective 8 May 1998, prior to meeting all commissioning requirements. g. She was unaware of the discrepancy at the time and had no idea of the potential negative impact such a misunderstanding could have on her career. The U.S. Army Human Resource Command (HRC) has indicated they will wait to submit a correction to her PEBD until the Board has made a determination. 3. The record shows on 9 October 1996, the applicant enlisted in the U.S. Army Reserve as a cadet, for a period of 8 years. 4. Her Army Senior ROTC Nonscholarship Cadet Contract, dated 9 October 1996, shows: * she was enrolled at Norwich University, VT * her education commenced in September 1994 * her education completion date is shown as May 1998 * she agreed the contract, which included an 8 year military service obligation upon appointment as an Officer, and the Enlistment contract, constitute the ROTC program required contractual agreements * she agreed to remain enrolled in and successfully complete the ROTC program, including ROTC Advanced Camp and all training as prescribed by the Secretary of the Army or his/her designee, as a prerequisite for commissioning. 5. The applicant provides: a. A letter, dated 21 April 1998, wherein she requested discharge from the VTARNG in order to accept a commission into the active Army, effective August 1998. She stated that she would be leaving Norwich University on 8 May 1998, and attend ROTC Advanced Camp prior to activation; therefore, she would be unable to attend drills. b. A letter, dated 21 April 1998, showing the applicant's commander, recommended the applicant by discharged from the VTARNG, effective 8 May 1998, for the purpose of immediate commissioning into the Regular Army. 6. Her record is void of official orders discharging her from the VTARNG. 7. The applicant was discharged for the purpose of immediate reenlistment on 8 May 1998. Her NGB Form 22 shows in: * Item 9 (Command to which transferred), Not applicable * Item 11 (Terminal Date of Reserve/Military Service Obligation), "98 05 08" * Item 13 (Primary Specialty Number, Title and Date Awarded), "09R10 SMP 961009" * Item 23 (Authority and Reason), "NGR 600-200 Para 8-26a(2), Discharge for Immediate Reenlistment" 8. On 15 September 1998, she accepted an appointment, and executed her oath of office, as a second lieutenant in the USAR. 9. Orders provided by the applicant show she was ordered to active duty effective 11 January 1999. 10. On 1 May 2019, in response to the applicant's request for military records, the VTARNG G1 Sergeant Major, stated the processes and procedures in 1998 may have been different; however, the applicant's DA Form 597, part 1, paragraph 1a, outlines an 8 year military service obligation which should have obligated her to a military status while pending commission. This representative included documents taken from the applicant ROTC Cadet contract, dated 9 October 1996, which reflect this 8 year military service obligation (MSO). a. Statement of Understanding of Reserve Obligation and Responsibilities, which shows that upon enlisting in the ARNG the applicant acknowledged that after completing active duty for training (if required), she would serve the remaining period of her enlistment with her assigned unit unless the option she selected provided for transfer to the Individual Ready Reserve (IRR) or Inactive National Guard (ING), after a period of time in her unit. Further, that she could be ordered to active duty at any time involuntarily in the event of war or national emergency. b. Appendix A- Enlistment/Reenlistment Agreement-ARNG, Statement of Understanding of Reserve and Obligation and Responsivities, which shows she acknowledged incurring a statutory MSO of 8 years. She agreed to be a member of an ARNG unit for 4 years and a member of the IRR or ING for the balance of her 8 year obligation. c. SMP Agreement-ARNG, which shows as a participant of the SMP, she understood that if she failed to apply for enrollment in the Advanced ROTC course, she would be: * deleted from SMP * retained in the enlisted grade held prior to participation in the SMP * required to execute the terms of her enlistment/reenlistment agreement excluding this amendment * complete Basic Combat Training(BCT) and Advanced Individual Training (AIT) if not previously completed d. Army SROTC Nonscholarship Cadet Contract, which also shows in Part 1 (Agreement of Nonscholarship Cadet enrolling in the SROTC Program Advanced Course), she agreed to enlist for a period of 8 years in the USAR as a cadet for assignment to the USAR Control Group (ROTC) or assignment to a unit of the USAR, or enlist in the ARNG of the United States to become a member of the Army ROTC Program. 11. On 19 August 2019, the VTARNG G1 SGM, advised the applicant, after consulting with the NGB, that they could not adjust her discharge date from the VTARNG without determination from the ABCMR. 12. The applicant provided a personnel transcript, pay records indicating her PEBD as 21 December 1997, and her oath of office. 13. The ABCMR analyst contacted a VTARNG G1 representative on 18 August 2019 to determine the reason for the applicant's delayed commissioning date. The VTARNG representative was unable to explain why the applicant's commission was delayed, or even if there was a delay, because they only have access to the applicant's enlisted service. The VTARNG records show the applicant's request for discharge in order to accept a commission was forwarded through the command channels to the State Headquarters, and an order was published for discharge, effective 8 May 1998. At some point the request was marked as "APT 2LT 09MAY1998." The G1 representative found no evidence of commissioning effective in May, only a pen and ink comment on the request for orders. It is unclear what transpired at the time but this is currently not normal procedure. The VTARNG will not discharge until documentation (oath of office or Active Army Orders) is supplied, and they ensure the effective date is the day before commissioning as the individual still has an obligation to the ARNG organization until commissioned or officially released by some other means. 14. In addition, the ABCMR analyst contacted the applicant to determine the reason her commissioning was delayed. The applicant indicated that she was injured in April 1997 (torn ACL) and was unable to attend Advanced Camp that summer (commissioning requirement). 15. Title 10, U.S. Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s statement and supporting documents, notably her record of service, and regulatory guidelines for cadets in the simultaneous membership program, and found sufficient evidence to grant relief. 2. AR 145-1 (Senior Reserve Officers' Training Corps Program) states that Cadets assigned to USAR Control Group (ROTC) may be discharged or separated for the convenience of the Government for several reasons to include to accept an appointment as a commissioned officer. The effective date of discharge will be the day before commission. 3. The applicant was serving as an enlisted Soldier in the VTARNG while simultaneoulsly serving as a senior ROTC cadet. She should have been discharged the day prior to her commissioning. However, her unit erroneously discharged her earlier than the day prior to her commissioning. Her oath of office is dated 15 September 1998. Her NGB Form 22 effective date is erroneously entered as 8 May 1998. Therefore, the applciant’s date of discharge from the VTARNG should be amended. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the Administrative Notes (below the signature block), the Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her NGB Form 22 effective date to read “14 September 1998,” vice “8 May 1998.” X 11/12/2020 CHAIRPERSON 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. ADMINISTRATIVE NOTE(S): The PEBD should be addressed by NGB should the Board grant relief. 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 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. 2. Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers), in effect at the time, and the current regulation, state SMP Soldiers who are simultaneously commissioned and selected for AD may be retained in their unit pending entry on AD. However, retention is restricted to the same unit in which they served while in an enlisted status. 3. AR 145-1 (Senior Reserve Officers' Training Corps Program, states: a. Cadets assigned to USAR Control Group (ROTC) may be discharged or separated for the convenience of the Government for several reasons to include to accept an appointment as a commissioned officer. The effective date of discharge will be the day before commission. b. The discharge authority for ARNG SMP participants is the proper State Adjutant General. The Professor of Military Science must coordinate with the appropriate authorities to ensure the Soldiers are discharged effective the day preceding their commissioning. 4. U.S. Army Cadet Command Regulation 145-9 (Cadet Command ROTC Branching, Commissioning, and Accession Regulation), states in paragraph 3-9 (Changes in commissioning Date or Duty Status), the ROTC Program Professor of Military Science/Human Resource Administrator must immediately notify USACC G1, ASD, Accessions Branch, and fax/email a change/deletion report when a commissioning date (initially established during the component/branching process) changes or a Cadet is not otherwise eligible for commissioning due to initiation of disenrollment action, delay in granting of security clearance, or other disqualifying factors. 5. Department of Defense Instructions (DODI) 1304.25, states that, with few exceptions, every person who enters military service by enlistment or appointment incurs an MSO of 8 years from that entry date, in accordance with Title 10, U.S. Code, section 641. 6. DODI 1300.04 (Inter-Service and Inter-Component Transfers of Service Members) states release of a commissioned officers, warrant officers, and enlisted members, for a transfer in accordance with this directive will not constitute a release from fulfillment of the military service obligation established under Title 10, U.S. Code, an active duty obligation in accordance with DODI 6000.13 (Accession and Retention Policies, Programs, and Incentives for Military Health Profession Officers), any other active duty obligation; or any agreement, law, regulation, or policy of the losing uniformed service. Additional military service performed after such transfer will be counted toward fulfillment of a previous obligation. 7. Title 10, U.S. Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. //NOTHING FOLLOWS//