MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002074943

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Jennifer L. Prater		Member
Ms. Mae M. Bullock		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: In effect, that the reason for her release from her Troop Program Unit (TPU) and reassignment to the US Army Reserve Personnel Center (Standby) be changed from Voluntary to Hardship.

APPLICANT STATES: In effect, in her DD Form 149, Application for Correction of Military Record, and in a self-authored letter to the Board, that she was not counseled during the time as to the types of discharge or protocol procedures. She states that she underwent a stressful period during the time seeking relief.

In her self-authored letter, she provides a summary of events in her military and personal life from 1991 to the date of her application for correction of her records. She repeats that she is seeking a correction of her military records to have her release from her Reserve TPU be changed from "voluntary" to, "for hardship reasons."

Finally, she states that the Veterans Administration (VA) requires determination to adjust eligibility for educational benefits initially earned upon enlistment.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the US Army Reserve for 8 years to participate in the Army's Delayed Entry/Enlistment Program on 31 December 1991. She was discharged from the Reserve and enlisted in the Regular Army on 26 August 1992. The applicant obligated herself to serve on active duty for 2 years and 23 weeks and in the Reserve, affiliated with a TPU, for an additional 2 years. She entered active duty in the rank of Private, pay grade E-2.

The applicant was promoted to Specialist 4, pay grade E-4, on 1 March 1994, and was honorably released from active duty in that rank and pay grade on
6 February 1995, at the completion of her required Regular Army active service, under the provisions of Chapter 4, Army Regulation 635-200. On the date of her release from active duty, she had completed 2 years, 5 months and 11 days active Federal service.

On 14 December 1994, before her release from active duty, the applicant executed a DA Form 7249-R, Certificate and Acknowledgement of Service Requirements and Methods of Fulfillment for Individuals Enlisting or Transferring into Troop Program Units of the Army, National Guard/US Army, obligating herself to serve with a Troop Program Unit (TPU), Headquarters and Headquarters Company, 359^th Transportation Corps Battalion, located at Fort Eustis, Virginia. The effective date of transfer to this TPU was to be the date following her release from active duty.

---

The DA Form 7249-R, shows that she obligated herself to a term of service of 4 years, 10 months and 25 days with the above listed TPU.

On 4 March 1995, the applicant signed and dated an "Acknowledgement of Service Obligation." This acknowledgement has a statement that the applicant attested to which states, "I have attended an orientation IAW (in accordance with) Army Regulation 135-91 and understand my service obligations and participation requirements." The statement was reviewed, initialed, and dated, 12 June 1996.

The DA Form 3540, Certificate and Acknowledgement of U.S. Army Reserve Service Requirements and Methods of Fulfillment, the form used, by regulation, to acknowledge service obligations and methods of fulfillment, is not on file in the applicant's service personnel records.

Army Regulation 135-91 defines Army National Guard of the United States (ARNGUS) and US Army Reserve (USAR) service obligations. It prescribes policy and procedures governing the various types of service obligations and participation requirements. There is a discussion on excused and unexcused absences and the policy on pregnancy. Finally, the regulation covers enforcement procedures regarding unsatisfactory participation.

The applicant's personnel records also contain a SIDPERS-USAR Personnel Qualification Record (Enlisted), DA Form 2A (USAR), which was reviewed, signed, and dated, 2 December 1995. The signature was entered in red and in Section II - Service Date, Item 8, Expiration of Ready Reserve Obligation, the entry, 970205 (5 February 1997) was change to 991230 (30 December 1999). Item 9, Expiration of Statutory Obligation, was changed from 970205 to 991230 (30 December 1999). Item 10, Expiration of TPU Service, was changed from 970205 to 980826 (26 August 1998).

The applicant was released from the 359^th Transportation Corps Battalion and reassigned to the Army Reserve Personnel Center (Standby) with an effective date of 20 July 1996 in accordance with Orders 322-74, published by Headquarters, 310^th Theater Army Area Command, dated 17 November 1996. The reason shown on these orders is, "Voluntary Reassignment." The authority shown for the reassignment is Paragraph 4-9d, J5, Army Regulation 140-10.

The above "Voluntary Reassignment" to the Standby Reserve occurred after the applicant had been a member of the unit for a period of 1 year, 4 months, and 14 days. The date of her release from the TPU is well before the date initially found in Item 10, Section II, DA Form 2A (USAR), 970205 (5 February 1997). The date

---

of her release from the TPU is also long before the date that was annotated in red, 980826 (26 August 1998), immediately above the date, 970205 (5 February 1997).

Contained in the applicant's military records is a DARP Form 249-E, Chronological Statement of Retirement Points. A review of points earned by the applicant reveals that her attendance and participation with the TPU was sporadic. From the effective date of assignment (Item 3 Section IV, DA Form 2A (USAR)) 7 March 1995, to the end of her retirement year, 25 August 1995, the applicant had attended 11 drills and had earned 12 active points. There is no evidence in her record and she has provided no documentary evidence or indication that she attended any drills after 23 August 1995.

There is no evidence in the applicant's personnel records that she requested that she be released from her obligation from service with the TPU either because
of hardship or another reason provided for by Paragraph 4-9, Army Regulation 140-10.

In her self-authored letter to this Board, the applicant includes the following statements [pertinent statements have been underlined for emphasis]:

"I also began a program of education at Old Dominion University. On September 22, 1995, I had a son, K----- K--. I was not married but I continued to attend my unit training meetings. My grand mother was the only person whom I could rely on for childcare. It was my full intention to continue my reserve drill meetings. Unfortunately, her health began to give her trouble in early 1996. After various tests, we discovered that she had breast cancer that required immediate medical attention as it proved to be fatal. She required extensive medical treatment. Consequently, I felt the need to relinquish my duty from the reserves as I was the only relative in the area capable of assisting her and my small cousin. I provided transportation, assisted with household maintenance, and the caregiver responsibilities for my cousin. We resided in separate residences. I was unable to find adequate childcare for the weekend as most childcare centers in my area operated during the normal business week with regular business hours. My unit, on occasion, required us to attend Friday evening meetings in addition to Saturday and Sunday times.

         To further complicate matters, I became pregnant with my second child during this time frame. Under such personal hardship, I felt no alternative but to request a cessation of my active reserve status. I was not counseled about my type of discharge or whether it would affect my educational benefits."

---

In addition, the applicant adds:

         ". . . . . I was not counseled about my type of discharge or whether it would affect my educational benefits. I was informed I would have a general discharge and was processed out rather quickly. . . . . "

There is no evidence in the applicant's personnel records that the applicant's unit was pursuing her release and assignment to the IRR because of unsatisfactory participation or for another reason as provided for by Paragraph 4-9, Army Regulation 140-10.

There is also no evidence that the applicant's unit initiated any action that could result in a general discharge. There is no evidence that she received a general discharge.

Paragraph 4-9, Army Regulation 140-10, stipulates that the voluntary reassignment of a TPU or IMA soldier to an appropriate control group of the IRR is authorized only under one or more of 12 conditions including, "d. On completion of a contractual agreement to serve in a TPU which the soldier incurred on initial enlistment in the USAR."

The code, J5, used in conjunction with the authority shown in Orders 322-74, referred to above, is quoted as follows: "Type of Transaction: Reassignment of members of the Ready Reserve to the Standby Reserve, having fulfilled their Ready Reserve obligation."

The code from Army Regulation 680-29 used to identify member of the Ready Reserve reassigned to the Standby Reserve because of extreme personal or community hardship is JD.

The applicant was honorably discharged from the US Army Reserve Control Group (Annual Training) in the rank and pay grade, Specialist 4, E-4, on
4 January 2000, in accordance with ARPC-SFS-R Orders D-01-000105, published by the U.S. Army Reserve Personnel Command on 4 January 2000. The authority for her discharge was Army Regulation 135-178.

Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, 2002 edition, states that honorable and general discharges qualify a veteran for most Department of Veterans Affairs (VA) benefits. The VA is guided by its own policies and regulations and operates independently of the military services. The VA administers benefits according to those policies and regulations. Decisions made by the various branches of military service have no force or effect on decisions made by the VA.

---

DISCUSSION: Considering all the evidence, allegations, and information
presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The evidence shows that on 14 December 1994, before her release from active duty, the applicant enlisted in the Reserve with a guaranteed assignment to Headquarters and Headquarters Company, 359^th Transportation Corps Battalion, a TPU located at Fort Eustis, Virginia, to be effective the date following her release from active duty.

2. A properly completed DA Form 7249-R, Certificate and Acknowledgement of Service Requirements and Methods of Fulfillment for Individuals Enlisting or Transferring into Troop Program Units of the Army, National Guard/US Army Reserve Upon Discharge from Active Army Service, shows that she obligated herself to a term of service of 4 years, 10 months and 25 days with the above listed TPU.

3. A properly completed DA Form 5435-R-E dated and signed on 14 December 1994 is in the applicant's service personnel records. This attests to her having received appropriate counseling regarding obligations and eligibility requirements for entitlements under the Selected Reserve Montgomery GI Bill and to ensure that the understanding of these conditions is a matter of record.

4. The available evidence shows that the applicant was released from the TPU and reassigned to the Army Reserve Personnel Center (Standby) on 20 July 1996, before the term of service that she had obligated herself to had been completed.

5. Statement made by the applicant in her self-authored letter contain an indication that she was counseled about her attendance and participation with the unit and she opted to be released from her obligation to the unit and asked to be reassigned to the IRR. The notion that she "would have a general discharge," could only have come from such an exchange.

6. The Board noted that the applicant was retained, beyond the expiration of her term of service, for the convenience of the government, by four days.

7. Veterans and other claimants for VA benefits have the right to appeal decisions made by the Department of Veteran's Affairs to that agency. The Board does not make decisions to entitle an applicant to educational, disability compensation or other benefits administered by the VA. The VA operates independently of the military services and hence, decisions made by the Army have no force or effect on the VA.

---

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__mkp___ ___jlp__ __mmb___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2002074943
SUFFIX
RECON
DATE BOARDED	20030114
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.	103.0000
3.	135.0000
4.	1350100
5.
6.