MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 May 2003
         DOCKET NUMBER: AR2002076799

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Roger W. Able		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)

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APPLICANT REQUESTS: That his rank of Master Sergeant (MSG), pay grade E-8, be restored.

APPLICANT STATES: That because of a family medical condition and other factors, he had to retire before he could complete the 2-year service remaining requirement for promotion to MSG. His wife required heart surgery. After the surgery, she would need someone to tend to her and provide her transportation to a hospital for immediate treatment. He had requested a compassionate reassignment to his home state so family members could watch her as they had no family at his duty location. His request was denied so he had no choice but to apply for retirement. He was placed on the Retired List in the rank of Sergeant First Class (SFC), E-7. He was unaware that he could submit a waiver to retain his rank.

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

After having had prior service, he enlisted in the U. S. Army Reserve (USAR) on 13 March 1987. He was voluntarily ordered to active duty in an Active Guard/Reserve (AGR) status on or about 24 October 1987.

On 22 June 1994, the applicant reenlisted in the USAR for 6 years. He was promoted to SFC effective 1 September 1994. He was reassigned to Fort Carson, Colorado around July 1997.

Around December 1997, the applicant submitted paperwork to enroll in the Army Exceptional Family Member Program (EFMP) due to his spouse's sinus tachycardia condition. Her cardiologist recommended she go to a lower altitude for 2 to 4 weeks to see if such a move alleviated her problem. If so, then she would need a permanent relocation to lower altitudes.

On 1 August 1999, the applicant was promoted to MSG. The promotion order stated in part, "Soldiers who are promoted automatically incur a 2-year AGR obligation prior to voluntary nondisabilty retirement."

By letter dated 1 December 1999, the cardiologist for the applicant's spouse indicated he recommended surgery for control of her tachyarrhythmias as medications had proven to be ineffective. The cardiologist noted that the applicant's spouse wanted and needed family support when the surgery was done and [the applicant] was therefore requesting a compassionate reassignment to their home in Montana.

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The applicant's request for compassionate reassignment is not available. It apparently was disapproved as not meeting the eligibility criteria outlined in Army Regulation 140-30, chapter 4.

On 7 February 2000, the applicant requested voluntary retirement for completing at least 20 years of active Federal service. The request was forwarded to the U. S. Army Reserve Personnel Command (AR-PERSCOM) for approval.

On 10 February 2000, the applicant extended his enlistment of 22 June 1994 for a period of 10 days to reach his retirement eligibility date.

U. S. Total Army Personnel Command, St. Louis, Missouri revoked the applicant's promotion to MSG on Orders 090-12 dated 30 March 2000.

On 9 May 2000, AR-PERSCOM approved the applicant's request for retirement.

On 1 July 2000, the applicant retired, in the rank of SFC, after completing 20 years, 1 month, and 28 days of creditable active service.

In the processing of this case, an advisory opinion was obtained from AR-PERSCOM, Full Time Support Management Directorate. That office recommended disapproval of the applicant's request. It noted that the applicant's
promotion orders were revoked because he did not reenlist/extend to meet the 2-year AGR obligation prior to voluntary nondisability retirement. His compassionate reassignment was disapproved because it did not meet the eligibility criteria as outlined in Army Regulation 140-30, chapter 4.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. The applicant responded by stating that, according to his [promotion] orders, he incurred a 2-year obligation prior to a voluntary nondisability retirement and should have never been released prior to that date. The administrative action taken by AR-PERSCOM allowed him to leave prior to completion of his incurred obligation and he should not be held responsible for that. His orders also stated that he had 30 days to accept or decline his promotion and that he was subject to worldwide reassignment, in a position commensurate with his grade and military occupational specialty, and that he complete the appropriate level of military education. He met all those requirements.

Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 4-16 states that those promoted to SFC through Sergeant Major will incur a 2-year obligation to remain on AGR status. During the obligated period of service, the soldier will not apply for voluntary nondisability retirement unless the soldier is (a) eligible for retirement by completion 30 years or more active Federal service and (b) already eligible through prior service for a higher grade at retirement and (c) over 58 years of age.

Army Regulation 140-158, paragraph 4-17 states that the purpose of the USAR AGR enlisted promotion system is to fill AGR noncommissioned officer (NCO) requirements with soldiers who have demonstrated the ability to function in the next higher grade. A promotion occurs because there is a need for an NCO that can function in a required AGR duty position. By accepting promotion, the soldier agrees that action will be taken to adjust his or her release from active duty (REFRAD) date to provide for the fulfillment of the incurred AGR obligation. Soldiers who on promotion have insufficient time remaining on their current term of service agreement must, in order to be promoted, start the action to extend their current agreement. A soldier's promotion will be revoked if, within 30 days of the effective date of promotion, the soldier fails or refuses to comply with the expiration term of service (ETS) adjustment action based on the incurred AGR obligation when required.

Army Regulation 140-30 (Active Duty in Support of the United States Army Reserve (USAR) and Active Guard Reserve (AGR) Management Program), chapter 4, discusses attachment and reattachment. It states that consideration will be given to AGR program requirements, position requirements, successive attachments to positions of increased responsibility, and individual preferences. Paragraph 4-2k provides policy and procedures on USAR AGR compassionate reattachments (cases of extreme hardship that can be alleviated only by attachment to a specific area). Several criteria must be met. One of the conditions is that, while the condition may be permanent or continuing, the problem created by the situation must be resolvable within 1 year. For approved requests, all current authorized USAR AGR position vacancies will be reviewed to determine if a valid position vacancy is available in the specified geographical area. If available, the soldier will be notified and normal permanent change of station reattachment and stabilization policy will be followed.

Army Regulation 608-75 (Exceptional Family Member Program) states in pertinent part that one objective of the program is to assign soldiers to an area where the EFM's medical and special educational needs can be accommodated provided there is a valid personnel requirement for the soldier's grade and specialty. Participation in the EFMP is not the basis for deletion, deferment or compassionate reassignment.

Army Regulation 635-200 (Enlisted Personnel), chapter 12, provides that a soldier who has completed 20 years of active Federal service and who has completed all required service obligations is eligible to retire. Soldiers who are promoted to the grades of E-7 through E-9 incur a 2-year service obligation which must be completed before voluntary retirement. Exceptions to service obligations may be granted. They are granted when the best interest of the service is involved or when substantial hardship exists or would result if the soldier is not retired. Substantial hardship is a situation or circumstance which imposes undue suffering on the soldier or the immediate family. Requests for waivers will be forwarded through the soldier's commander to the U. S. Total Army Personnel Command (PERSCOM) in Alexandria, Virginia.

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

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board empathizes with the applicant's situation which required that he choose between his military career or his wife's health. It appears his request for compassionate reassignment may have been disapproved either because his spouse's situation could not be resolved within one year or because there was no valid position vacancy for his grade and specialty in Montana. Either way, the Board understands his decision to choose retirement in consideration of his wife's health.

3. Army Regulation 140-158 is very clear that those promoted to SFC through Sergeant Major will incur a 2-year obligation to remain on AGR status. The regulation states that the purpose of the USAR AGR enlisted promotion system is to fill AGR NCO requirements with soldiers who have demonstrated the ability to function in the next higher grade. The regulation further states that a promotion occurs because there is a need for an NCO that can function in a required AGR duty position.

4. Notwithstanding the clear intent of Army Regulation 140-158, the Board concludes that given the applicant's family circumstances AR-PERSCOM would have been remiss had it failed to alleviate his hardship by not granting his request for retirement. However, AR-PERSCOM's compassion in granting his retirement cannot then be faulted for "allowing" him to leave prior to completion of his incurred obligation.

5. While AR-PERSCOM appears to have been remiss in not revoking the applicant's promotion to MSG earlier (when he failed to take action to extend his ETS within 30 days to meet the incurred AGAR service remaining requirement), his promotion was properly revoked prior to his retirement request being approved. As a senior noncommissioned officer, the applicant should have been aware of what the regulation required. AR-PERSCOM's failure to take that action earlier did not prohibit their taking that action later.
6. The waiver action mentioned by the applicant is cited in Army Regulation 635-200. However, the regulation specifies that waiver requests will be forwarded to PERSCOM. The applicant, being in a USAR AGR status, did not fall under the jurisdiction of PERSCOM. AR-PERSCOM was the approval authority for his retirement.

7. The Board concludes that, since Army Regulation 635-200 does not outline a waiver authority for AGR soldiers, the waiver authority in Army Regulation 635-200 does not apply to AGR soldiers.

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

__aao___ __tap___ __rwa___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076779
SUFFIX
RECON
DATE BOARDED	20030515
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	129.00
2.
3.
4.
5.
6.