AR20150009866

IN THE CASE OF:

BOARD DATE: 1 December 2015

DOCKET NUMBER: AR20150009866

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 is records to show no break in service when he left active duty as a Regular Army officer and reverted to his U.S. Army Reserve (USAR) status.

2. The applicant states:

a. On 30 September 2014, he was released from active duty (REFRAD) as a Regular Army Officer, transferred into an active Reserve status and assigned to the 2291st Army Hospital, El Paso, TX. He signed into the unit on 3 October 2014.

b. He had orders and signed documentation to make this transfer seamless but the S-1 at his USAR unit could not find him in the computer. He went on with the assumption he was in the unit but just waiting for the paperwork. He tried to perform annual training but since he was not in the computer he performed continuing education and consultant work at Fort Carson, but not in uniform.

c. It was not until 13 March 2015 that he was informed of a U.S. Army Human Resources Command (HRC) delay in processing his Reserve Commission Packet despite that packet being forwarded to HRC in March 2014 (6 months before his REFRAD). Apparently due to personnel shortages his packet was not forwarded to the Senate for confirmation until sometime late in December 2014.

d. HRC’s failure to process his Reserve commission packet in a timely manner has caused the record to reflect a break in service which is unjust. Because of HRC’s delay, the active duty time from March to September 2014 will not be counted as points toward Reserve retirement. It has also caused repercussions in the Reserve unit because he appears to have a bad year.

3. The applicant provides

* his REFRAD orders, dated 25 March
* revised orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* HRC apology
* appointment letter

CONSIDERATION OF EVIDENCE:

1. The applicant, a USAR Dental Corps lieutenant colonel at the time, entered active duty on 15 March 2005.

2. He was selected for promotion to colonel; then confirmed by the Senate in June 2008. He was promoted with a date of rank and an effective date of 25March 2009. In accordance with the All-Regular Army Active Duty Force policy (incorporated in the National Defense Authorization Act of 2005), which required all commissioned officers to be appointed as Regular Army officers; the applicant executed a Regular Army oath of office.

3. Headquarters (HQ), U.S. Army North (Fifth Army) Orders 149-1111, dated 29May 2014, assigned the applicant to the transition point for REFRAD on 30September 2014. Subsequently, United States Army North (Fifth Army) Orders 156-1111, dated 5 June 2014, amended those orders to assign the applicant to a specific USAR troop program unit.

4. The applicant executed the oath of office as a USAR colonel on 4 March 2015 (effective date of 3 March 2015) and he was assigned the same USAR unit as had been specified on the 5 June 2014 orders.

5. A letter from HRC, dated 12 March 2015, explained, …Because of the delay in Senate confirmation, you now have a 6 months/3 days break in service. Your DOR (date of rank) and PEBD (pay entry base date) have been adjusted to account for the break in service.Our apologies for the long wait for orders and any inconvenience this may have caused.

6. The applicants AHRC Form 249-E (Chronological Statement of Retirement Points), dated 3 November 2015, does not reflect a break in service and the anniversary (formerly known as retirement) year ending date remains 24 March.

a. It further shows he was correctly credited with 6 months and 6 days of non-regular retirement credit (i.e. 190 retirement points) for his Regular Army service during the period 25 March 2014 through 30 September 2014.

b. It also shows him as having a USAR status during the period 1 October 2014 through 24 March 2015 (anniversary year ending date).

7. During the processing of this case an advisory opinion was obtained from HRC. The Chief, Officer Accessions Branch reported that the applicants, REFRAD notice was received on 1 May 2014. He was immediately added to the next available scroll, 1 May 2014; however Senate confirmation for (the applicant) was not executed until 3 March 2015.

8. Army Regulation 600-8-24 (Officer Transfers and Discharges) paragraph 2-7 (Rules for processing voluntary release from active duty due to expiration of active duty commitment) states, Applications for REFRAD will be submitted not earlier than 12 months or less than 6 months before the desired release date or beginning date of transition leave, whichever is the earliest.

9. Army Regulation 600-8-10 (Leaves and Passes) defines excess leave as a non-chargeable absence without pay and allowances granted for emergencies or unusual circumstances or as otherwise specified in this regulation.

10. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states the full year period used to credit a qualifying year of service for non-regular retirement is based on an anniversary year. The anniversary year, in pertinent part, ends on the day before the anniversary year of the date the member first attains an active status in any reserve component and has continuous military service in an active status in any regular or reserve component.

DISCUSSION AND CONCLUSIONS:

1. The applicant requests correction of is records to show no break in service when he left active duty as a Regular Army officer and reverted to his USAR status.

2. The applicants original separation orders published by HRC indicated that he was to be released from active duty and transferred to a Reserve unit effective 1October 2014. The applicants request for REFRAD was submitted and received in accordance with the governing regulation and the evidence of record clearly shows that responsible individuals at HRC were aware that the applicant intended to continue with his USAR career.

3. Furthermore, the advisory opinion noted that he was added to the next available scroll on 1 May 2014. The fact that it took until March 2015 for Senate confirmation to occur resulted in a break in service. This was not the fault of the applicant and it clearly created an injustice.

4. It appears that the applicant believes he will not receive retirement credit for the last 6 months and 6 days of active duty due to his break in service. However, he will and has already been credited with 190 retirement points for this period of service.

5. In view of the foregoing, it would be appropriate to rectify this injustice by correcting the applicants records as recommended below.

BOARD VOTE:

____X___ ____X___ ____X___ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 HQ, U.S. Army North (Fifth Army) Orders 149-1111, dated 29May 2014, to show an effective REFRAD date of 2 March 2015
* amending his DD Form 214 to show he was in an excess leave status for the period 1 October 2014 through 2 March 2015
*
amending his DD Form 214 to show he was REFRAD on 2 March 2015 and transferred to the unit currently shown in item 9 (Command to Which Transferred)
* adjusting his retirement data and points to reflect the above changes

_______ _ X______ ___
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.

ABCMR Record of Proceedings (cont) AR20150009866

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ABCMR Record of Proceedings (cont) AR20150009866

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