Military Retirement With Enlisted And Officer Service

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Today’s post is an “ask the readers” question about military retirement after service in both enlisted and officer grades.

(Nearly 80% of this blog’s readers find a post through a search engine. This post uses keywords about officer and enlisted retirements and the accompanying legal issues that can be difficult to research. The same keywords will also help you look up the references behind your service’s retirement regulations so that you can understand where the instructions came from.)

I’m familiar with the Navy’s active-duty retirement system. I know most of the retirement rules for officers who have previous enlisted service. I’m also pretty good at navigating the DoD’s Financial Management Regulations for calculating those retirements, and I can look up Title 10 of the U.S. Code to help figure out what rules apply to a retirement.

Yet readers have asked about retirements where it’s difficult to tell whether someone has been retired according to the rules, or if there’s been a mistake. If you’re familiar with the types of situations that I’m describing below, then I’d appreciate more insight into what federal laws apply to their retirements.

Here’s the first reader question:

“I enlisted in active-duty USMC in 1977, completing three years of honorable service in 1980. In 1985, I entered active-duty USAF as an officer and served 7.5 years – again I was honorably discharged in 1992.
In 2001, I joined the USAF Reserve, again as an officer. Later I was passed over twice for promotion to 0-4 and was discharged in 2006. (My service in the inactive AF Reserve between 1992 to 2001– with no performance reports– hindered my chances for promotion.) I was honorably discharged from the USAF Reserve in 2006, and I joined the Army Reserve as an E-5. I was promoted to E-6, I’ve obtained my 20-year Notice of Eligibility, and I am still serving as an IMA Reservist.
I have over 12 good years as an officer– nearly nine of them as an O-3. I fall under the Final Pay retirement plan. Do I qualify to retire at my highest grade held, or do I retire as an E-6?”

 

I’m impressed to see a servicemember who’s still eligible for the Final Pay retirement system!

My first piece of advice is: consult a military lawyer from a base legal service office. They’re familiar with both federal law and DoD retirement rules and can figure out the details. By enlisting before 8 September 1980, this retirement comes under Final Pay legacy rules that today’s personnel staffs may not see very often.

As I understand the DoD Financial Management Regulation, this reader is eligible to retire as an O-3. Sections 010501(E) and 030105 include the phrase “of the highest grade held satisfactorily at any time in the Armed Forces.” They have over 10 years of commissioned service, and they served satisfactorily in their senior grade (O-3) for at least six months. However a key question could be whether their broken service or their failure to promote can affect the rules which apply to retiring in officer or enlisted status.

The bibliography of the FMR cites federal law in Title 10 U.S. Code sections 1406(b)(2) and 1370(d). 1406(b)(2) explains Reserve retirement under the Final Pay system and also specifies the “highest grade held satisfactorily by the person at any time”. It then refers to 1370(d), which specifies the rules for retirement in the highest grade held satisfactorily. It requires serving in officer ranks (up to paygrade O-4) for at least six months to be able to retire at that rank.

The services each have their own parts of Title 10 law. The Army sections 3911 and 3926 lay out the requirements of a Reserve retirement with at least 20 good years, at least 10 years of which have been active service as a commissioned officer. The Secretary of the Army also has the authority to waive the 10 years to eight years, and can do this through the end of FY18.

If you’ve been in uniform for a few years (particularly as an officer) then you’ve probably heard about these requirements and numbers before. Now you know where they come from, and you can look up the details for yourself at the Cornell Law School’s Legal Information Institute.

However another reader was retired in an enlisted rank, despite considerable officer service:

“I was on active duty for over 16 years Navy, and I was commissioned for 10 years and 8 months of that service. I was separated by a reduction in force after the first Gulf War. I later joined the MN Army National Guard at an enlisted rank, deployed to Iraq for two years, and retired with over 20 years of active federal service.
The Army retired me under Title 10 U.S. Code sections 3914 and 3964. I have been retired for two years now and still cannot get anyone to explain to me why Title 10 U.S. Code sections 1370, 3926, and 3911 do not apply to my situation.”

 

The problem is that Title 10 U.S. Code sections 3914 and 3963 apply to Army Reserve enlisted with at least 20 years of service who were retired “in the highest enlisted grade in which the member served on active duty or National Guard duty satisfactorily”. Those sections don’t recognize officer service, and maybe those were the wrong sections to use for this reader’s retirement request.

This reader is also consulting a lawyer to figure out whether Title 10 U.S. Code sections 3911 and 3926 should have been applied. Perhaps the Army personnel branch wasn’t familiar with (or even aware of) this servicemember’s Navy active-duty service. Of course I may not have all the details, so let me know if there’s a question that would make a difference and I’ll pass it on to the reader.

If you’ve had service in more than one branch of the military, particularly as a commissioned officer, then make sure your current branch of service has a copy of the records from the other services. Electronic databases may not be compatible between the services, so that previous service may have to be entered online as well as placed on file with your local personnel office.

When you separate or retire from the service, the procedures are based on the DoD FMR and federal law. As you go through the process you should ask what instructions, procedures, and regulations apply to your situation– and then look them up to be sure they really do apply to your situation. If something else seems applicable then take it up with the personnel office and your chain of command. If they can’t help then consult a military lawyer to make sure that you understand the issues.

It’s hard to figure out what rules and laws are being applied to your transition, but it’s even harder to correct these errors after you leave the service. If you have a question about your own situation then ask it in the comments below (or use the “Contact me” page) and we’ll try to figure out the answer!

 

(Click here to return to the top of the post.)
 

Related articles:
The FMR for calculating an active-duty pension
Calculating A Reserve Retirement
National Guard and Reserve retirement at the maximum pay

 

 

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20 Comments
  1. Reply
    Brian Owens August 28, 2017 at 2:12 PM

    Sir, I am an active duty Army CPT with 21 years of service (14 enlisted, 7 Officer (in December of 2017)) So my 8 year mark falls outside the window prescribed by the Secretary of the Army. My question is whether or not you have heard or know of any plan to extend the waiver past 2018. As it is I am not eligible to retire with 8 years AFCS by a measly 2 months. Thanks for the help!

    • Reply
      Doug Nordman September 1, 2017 at 12:11 AM

      Good question, Brian! I’m not aware of any interest in extending the law. There are pros & cons to extending the law, but I haven’t read anything about an actual proposal.

      When you apply for retirement in a few months, it’s still worth requesting the two-year waiver. The law is in effect until the end of September 2018, but the law is worded for the authority of the Army to authorize the retirement. In lawyer terms, that might mean *approval* of your retirement request within the next 13 months– even if the date of the actual retirement is after 30 Sep 18.

      Note that the Army does not have to approve your request, but you have to ask before you’ll find out.

  2. Reply
    Penelope Rhone August 11, 2017 at 3:52 PM

    Hello, I would appreciate your assistance with answering the following question:

    I joined the Army in 1997 as an enlisted Soldier. I commissioned in 2010 as a 2LT in the Army Nurse Corps. I am aware that there is a policy/regulation stating that you must have 10 years as an officer to retire as one. Otherwise, one would retire at last enlisted rank, mine being E-6. However, I heard a few years ago that the requirement had been changed to 8 years. Will someone please help me find that Army MILPER Message? I have tried every key word to search it and have had no luck.

    I really want to retire next August when I hit my 8 year mark as commissioned officer at pay grade O3E, but not if I wont get retirement pay as an O3E.

    Please advise.

    • Reply
      Doug Nordman August 12, 2017 at 12:34 PM

      Penelope, you can request the waiver and reference the federal law, which should be enough for even Army HRC. Or maybe the Army MILPER message refers to keywords like Title 10 U.S. Code Section 3911:
      https://www.law.cornell.edu/uscode/text/10/3911

      Here’s the text:
      (a) The Secretary of the Army may, upon the officer’s request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.
      (b)
      (1) The Secretary of Defense may authorize the Secretary of the Army, during the period specified in paragraph (2), to reduce the requirement under subsection (a) for at least 10 years of active service as a commissioned officer to a period (determined by the Secretary of the Army) of not less than eight years.
      (2) The period specified in this paragraph is the period beginning on January 7, 2011, and ending on September 30, 2018.

      Note that although you’ll have more than 20 years of service, you’ll reach eight years of commissioned service in August 2018 and the waiver legislation expires in September 2018. The issue will be whether the Army is willing to waive your commissioned service down to eight years, or whether they’re trying to retain officers in your specialty and want you to stick around for a couple more years.

      • Reply
        Penelope Rhone August 28, 2017 at 5:17 PM

        Thanks, Doug. I plan to submit my paperwork very soon and request the waiver. I will update you as soon as I am approved for retirement and learn of all the specifics! I’m sure someone else out there is in the same boat as me and need answers. Thanks again!!!

  3. Reply
    Rod Q April 27, 2017 at 10:36 AM

    Doug,

    I have served as an active duty Enlisted Sailor for 22 years (E-8 now) and currently going through the Navy’s Physician Assistant program – and will be commissioned as O-2E at about 23 year active duty mark. I qualify for High-3 Retirement Pay. I have read through the previous post here, and looked up the referenced laws/regulations…here are my questions that I hope you can help answer or direct for resources to get clarification:

    1. If I resign my commission after 2 years as O-3E but less than 10 years Commissioned Officer time (8 year if allowed to be waived), total 27+ years active service at that point…
    a. Will I be reverted back to my E-8 pay for Retirement Pay computation?
    b. Will I qualify to have my Retirement Pay recalculated to Highest Rank Held (O-3E) at the 30 year mark? Is this 30 year mark just time passing by or will it need to be in the “reserves”?

    I plan on staying Active Duty as long as the Navy and my Family let me but I want to plan ahead and know my options, hence the questions. Thanks in advance for any guidance that you can offer.

    V/R,
    Rod

    • Reply
      Doug Nordman April 30, 2017 at 6:08 PM

      That’s right, Rod, the answers are both “Yes.” The 30-year mark is just time passing by, and for an enlisted Navy retirement it’s in the Fleet Reserve. Thanks for your question!

  4. Reply
    Marta Davies June 1, 2016 at 8:43 AM

    Hi Doug,
    Thanks for posting a detailed discussion on this topic!! I wondered if any of the folks illustrated in your examples have been successful at clearing up their situations? I’m a Maj in the AF Reserve, with 15 total years in uniform, and 10.5 years active duty time. I want to return to active duty, but cannot in my current career field (41A), and cannot retrain to a line AFSC. I can only go back as a nurse (which would require nursing school), or enlist. Right now I’m just looking for information on how retirement works if I were to resign my commission and enlist. I understand from this post and my own research that I’d retire as a Maj, but wondered if I’d be paid as a Maj upon collecting my pension.

    • Reply
      Doug Nordman June 2, 2016 at 10:54 AM

      You’re welcome, Marta! It’s a very confusing aspect of military retirement.

      I don’t always hear back from readers, but the second reader (who retired from the Army) has succeeded in obtaining the officer pension that he rightfully earned. It took several years of legal appeals.

      If you have at least 10 years of commissioned service (which is waiverable to eight years during the drawdown, at least until 2018) then you’re eligible to retire as an officer. If that rank is O-5 or higher then you’ll need three years’ time in grade (waiverable to two years) in order to have that rank on your retirement certificate. (An active-duty High Three pension is based on the highest 36 months of pay, so time in grade is not as critical in setting the amount of the pension.) If you opt for a Reserve pension then that retirement rank also determines which row of the pay tables is used for calculating your pension, so you want to be absolutely sure that you have at least three years (and three good years) of time in grade at that rank before applying for retired awaiting pay status. You might be able to get that Reserve time in grade waived down to two years.

      The services may be reluctant to enlist an officer of your rank and experience, but that’s a policy decision which doesn’t have anything to do with the pension or federal law. Another possibility that you may have already considered would be transferring to your current AFSC (and rank) in the Army or Navy.

  5. Reply
    Brandon February 20, 2016 at 9:52 PM

    Hello,
    I’m planning on resigning my Commision and enlisting soon. I’m an 0-3E with 6 years active duty plus guard/reserve time of 19 years. I will not have 10 years commissioned service until June of 2016. As long as I’m still having fun I plan to serve in the reserves until MRD. Will I be able to retire as an 0-3E if I’m a few months short of 10 years Commissioned service?
    Also does anyone know how my grade will be determined when I resign and enlist? Will I be an E-5 or E-6? How does that work?

    • Reply
      Doug Nordman February 23, 2016 at 7:32 PM

      Brandon, I can’t tell whether you’re saying that you have a total of 19 good years or a total of 25 good years (“six years of active duty plus 19 good years of Guard/Reserve time”).

      If you have a total of at least 20 good years then you can apply to retire, and when you retire then the years of commissioned service can be waived down to eight years. You’d be able to retire as an O-3.

      If you have a total of 19 good years and you stayed until 10 years of commissioned service, or stayed until you reached 20 good years, then you’d be able to retire as an O-3. Again, when you retire you can apply for a waiver to retire as an officer with as little as eight years of commissioned service.

      If you have 19 good years now and resign your commission before reaching retirement (20 good years) then your next rank is decided by the policies of your new service.

      It’s possible that I’m mis-interpreting your questions, so if this doesn’t answer them then feel free to add another comment or send me an e-mail.

  6. Reply
    1LT Parker August 7, 2015 at 9:26 PM

    I need your help!

    We all know that the Army is downsizing and using any means available to include promotion boards. Officers are being hit hardest. I am an active duty Army Officer with prior enlisted time. After not making the promotion list for the second time, I received my Mandatory Retirement Notification from HRC with a Mandatory Retirement Date (MRD) of 31 Dec 15.

    Like those Captains and Majors that were boarded against their peers in a reduction in force board I was boarded against my peers in a promotion board. I feel I am not very marketable against many peers and an easy target because of the following.

    I will be 21 days shy of my 23rd year of Active Army Service on my MRD. 19 Enlisted with the highest grade of Staff Sergeant (E-6) and almost 4 years as an Officer. Let me briefly explain. I got commissioned through a recruiting program called the Army Enlisted Commissioning Program (AECP). I applied at 14 years of service when I was an E-6. I was notified of acceptance but placed on a Deferment Status because of a priority Military Transition Team (MiTT) assignment that I would not be released from. At 15 years of service, I deployed on that MiTT assignment. I returned, 16 years enlisted service, and on a conditional acceptance, I still had 2 classes to complete before I could start the last 2 years of the BSN Nursing School I had chosen. At 17 years of service I finally started Nursing School (2 years), this takes me to 19 years of service. Upon graduating and passing the National Nursing Board Test, I commissioned in the Army Nurse Corps. At almost 46 years old with this many years of service, I feel may be some of the reason for me being a non-select. I do not feel I have longevity left as a soldier, and the board probably recognized that also.

    Unfortunately, US Code, Title 10 states (summarized) that to retire as an Officer the Officer must have at least 10 years of Commission Officer Time. The 10 years is allowed to be reduced by the Secretary of the Army to no less than 8 years, which has been done. It also states that promotion non-select for the second time be retired/separated within months of the board president approval of the list. If they do not meet the required Officer Service time, and eligible, they can retire at their highest enlisted rank. I am almost convinced that this US Code law was written during a period that the US was not engaged in major conflicts.

    Like the others, this is a slap in the face. The concern is how much it affects my retirement pay. I have dedicated myself to the Army and our Country. I stepped up when the Army was heavily recruiting Army Nurses. Unfortunately, this led me to not continue my enlisted career and pursuit of promotion within the enlisted rank (By this time I knew I was a career soldier). I have deployed in time of war. I have been attacked by the enemy. The sacrifices I have made especially abandoning my family for 3 separate deployments. I was in Afghanistan with the initial wave of Army troops and Iraq with the initial wave as well. Initial wave equals nothing very established; a true war time soldier (MRE’s and no baths for days sometimes up to 3 weeks). I have already mentioned the MiTT deployment for which I was embedded along with 11 other soldiers (12 man MiTT) into and Iraqi force (Battalion level in my case) with the priority mission being to train them as the US military was gearing up for transfer of the war mission with hope of an established and functioning force and government. This is what I get. Disheartening!

    I ask for your help in any way you may know.

    Much appreciated, Rodney

    • Reply
      Doug Nordman August 9, 2015 at 8:45 AM

      Rodney, you’ve certainly researched the issue (thank you!). I see you’ve also found the other posts which discuss the parameters.

      It’s difficult to speculate on the reasons for non-promote. It could be age or errors/omissions in a record. It could also have little to do with you and everything to do with downsizing issues and end strength requirements.

      If you haven’t already done so, your first step should be to sit down with a JAG to discuss the federal law (with these blog comments) and whether you have any other options. You and the JAG could craft a waiver request to permit you to continue on active duty to reach eight years’ commissioned service due to the critical skills you’re providing in your billet. The point of the request is to force HRC to issue a formal letter response to your waiver request, not to let them discourage you from submitting the request. You want a written response, not just a verbal “We can’t do that”.

      You could also contact your elected representatives, because several senators were involved with last year’s OSBs. That tactic might not be popular with HRC or your chain of command, but again you have nothing to lose from starting a Congressional inquiry. Regardless of when or why the “10 years commissioned service” law was passed, only Congress can change it.

      I’m not going to hold out false hope. Even if your commission could somehow be backdated to your initial AECP acceptance, you’d still have less than 10 years of commissioned service. Perhaps the best you could hope for would be that your situation calls attention to the need to change the law.

      Even if you’re forced into retirement at an enlisted rank, the military may feel that you’ll eventually be “made whole” at the 30-year point. You and the JAG should take a look at 10 U.S. Code § 3964. Here’s the text:
      https://www.law.cornell.edu/uscode/text/10/3964
      Higher grade after 30 years of service: warrant officers and enlisted members
      (a) Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

      I’m not a lawyer, and I don’t understand whether Section 3964 means that your retirement pay is also recomputed. Your JAG may be able to find the applicable rule in the DoD Financial Management Regulation manual for military retirements:
      http://comptroller.defense.gov/Portals/45/documents/fmr/Volume_07b.pdf
      Table 1-2 on page 1-33 lists the rules for mandatory retirements, and Rule 6 probably applies to your situation. It doesn’t advise whether your retirement pay is also recomputed when you reach the 30-year point. However section 090401 on page 9-5 says:
      Reduction In Pay Due To Advancement
      There is no absolute requirement that a member of the Armed Forces be advanced on the
      retired list. If advancement and recomputation results in a reduction of retired pay for the member
      and is based solely on administrative determination, then, prior to the advancement, the member
      should be consulted by the military service and advised that the member’s retired pay would be
      reduced if advanced.
      A. Enlisted Member. If an enlisted member is, in fact, advanced on the retired
      list, then retired pay must be recomputed, even though a reduction of retired pay would result.

      To my unqualified interpretation of the FMR, it seems pretty clear that at the 30-year point you could apply to be advanced to O-2 on the retired list– and then you could apply to have your pension recalculated at the O-2 pay scale instead of the E-6 pay scale.

      Your former High-Three pay base derived from E-6>22 ($3,724.20) would be switched for a High-Three pay base of O-2E>2 ($5,418.00). Keep in mind that those columns are just the starting points and not the actual dollar amounts. You’d have to calculate the average of the highest 36 months of pay at those ranks. DFAS can help you with the calculation.

      Finally, Section 090302 on page 9-4 says you’ll also need an Army determination that you served satisfactorily in your O-2 paygrade. That appears to be handled by an Army Grade Determination Review Board, and it’s up to you and the JAG to ensure that happens during the next few months. You definitely want to get this done while you’re on active duty, because it’ll take months to make it happen after you’re retired.

      I know this doesn’t make the situation right, but I hope it helps. Please let me know how it turns out.

  7. Reply
    Ann July 1, 2015 at 11:38 AM

    Hello, I am an active duty Army CPT with 6.5 years officer time and 10 years of enlisted time. I’m on the list for early separation/retirement board in September of this year.will I be able to retire as an officer or revert back to my enlisted rank if I am selected?

    Thanks in advance
    Ann

    • Reply
      Doug Nordman July 2, 2015 at 9:05 AM

      Great question, Ann. I’m pretty sure the answer will be “officer”.

      The last board allowed most officers to extend until they reached eight years’ commissioned service. A few officers were given waivers by the Secretary to retire as officers. Those special cases didn’t get a followup by the media, but I also didn’t get any unhappy e-mails.

      http://the-military-guide.com/2015/01/08/army-officers-will-keep-officer-pensions/

      My impression is that HRC has learned that it’s less hassle to do the right thing and enable you the opportunity to reach eight years’ commissioned service. (It’s certainly better than dealing with my blog posts, the New York Times investigative journalists, and Congressional inquiries plus legislative initiatives.) If HRC thinks an extension is too long to reach the eight years then you’ll probably get a waiver to retire as an officer.

      I’d suggest that you make it easy for the Army to help you get to eight years’ commissioned service. Review your service record with someone who’s seen them at promotion boards. Find an assignment officer at HRC who will review your official record (not a local copy) for any gaps or issues. Make sure your official photo is professional and flawless, because the Army humans on the board will respond to impressive recruiting-poster images of other Army humans. Send in the corrections now (e-mailed or faxed and perhaps by overnight mail), and make sure the corrections get added to your record before the board reviews it.

      If you’re worried about being forced to retire, then worry constructively. Attend your service’s transition seminar and think through what you want to do after you retire from the military. Whether you do it on the Army’s schedule or on your schedule, you will eventually retire. It’s always worth investing a little preparation time now, even if you end up staying on active duty for a few more years.

  8. Reply
    jon robinson April 6, 2015 at 10:35 AM

    Sir, I really appreciate your response and I will follow up on your advice as soon as possible. JON

  9. Reply
    jon robinson April 4, 2015 at 6:21 PM

    This in regards to my March 2014 inquiry about which grade I retire at…I am the man who enlisted in the USMC in 1977, with USAF commissioned service (12 years combined active and reserve duty) and who is currently an E6 Army IMA reservist (9 years service) in Korea. I have contacted the personnel people at Fort Knox in regards to my retirement grade question and I have not heard a thing. I was wondering if there is a particular section at USA Reserve Command to address my original question and to get a retirement grade determination? If so, I would appreciate any contact information. Thanks. JON

    • Reply
      Doug Nordman April 6, 2015 at 3:28 AM

      Good to hear from you again, Jon!

      From your previous comment, you said that you already have your Reserve retirement Notice of Eligibility (your 20 year letter). Hopefully you’ve compared your Army Reserve record of your point count and your good years to make sure that Army Reserve HRC has all the information. It’s quite possible that they do not have any record of your 1977-80 Marine Corps service, your 1985-92 USAF active duty, or your 2001-06 USAF Reserve duty. They need to have that information in your Army Reserve personnel database in order to give you the right answers.

      You also appear to have at least 10 years of commissioned service, and Army Reserve HRC needs that information as well in order for them to understand that you’re qualified to retire as an O-3. That’s in federal law as Title 10 Section 3911 (https://www.law.cornell.edu/uscode/text/10/3911). However in order for HRC to comply with the federal law, they need to have the documentation of your commissioned service in their records.

      As you’ve said, you’re also eligible for a Reserve pension under the “Final Pay” system. In order for the Defense Finance and Accounting System to correctly calculate your pension, Army Reserve HRC has to have your Marine enlistment in the personnel database.

      Your Notice of Eligibility should include the point count and the good years in the Army Reserve personnel database. If that information is not correct then your first step is getting all the data into the system and verifying that with a new report. Ideally your NOE will have the contact information for this project. If you’re not getting a response then it’s worth calling a department head or the Commanding Officer’s office.

      I recognize that you may not be able to access your Army Reserve personnel records online if you don’t have a Common Access Card or an account. If that’s the case then Army Reserve HRC may also be able to set you up with an account login and password.

      I realize that you’re IMA, but you should also pursue these issues up your Army Reserve chain of command. If that’s the same people you’ve already tried then I’d talk to the personnel branch at your nearest Army base. If you’re still in Korea then you’d still start with your local Army personnel branch to get a good name, phone number, and e-mail address.

      Once your record of service is correctly reflected in the Army Reserve database, you’re ready to submit your retirement request. That should include a printed copy of the information in the database, and ideally the Army Reserve would approve it as a Final Pay O-3.

      Once you have an approved retirement then you’re ready to ask DFAS to confirm the start date and the point count/retirement rank of your pension.

      I’ll also publish your comment as a blog post asking the readers who you should contact. In the meantime I’d start with your NOE, your Army Reserve chain of command, and possibly the personnel branch at the Army base nearest you.

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