MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2002078420

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		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: Reinstatement on active duty in the Active Guard/Reserve (AGR) Program.

APPLICANT STATES: In effect, that he was unjustly barred from reenlistment and denied an opportunity to extend or reenlist on active duty. He further states that while the bar to reenlistment was initiated against him, he was not afforded the opportunity to respond to it before he was discharged. He also states that the bar to reenlistment was never finalized to completion and that he was discharged without being afforded the opportunity to extend his enlistment or dispute the basis for his bar. He further states that at the time he was experiencing marital problems and that he used permissive temporary duty (TDY) to go home and decide whether he was going to reenlist. He finally decided that he would reenlist; however, his commander would not allow it. He continues by stating that in all of his 17 plus years of active service and 5 years in the Reserve Components, he was never counseled on his job performance or reenlistment. In support of his application he submits a copy of the Bar to Reenlistment Certificate (DA Form 4126-R), his rebuttal, a copy of an electronic mail (e-mail) message from the Recruiting Command (USAREC), and copies of production reports.

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

After serving 12 years, 7 months and 12 days of active service, the applicant was honorably discharged in the pay grade of E-6 on 30 September 1992, under the provisions of Army Regulation 635-200, paragraph 16-8, under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program with the Voluntary Separation Incentive (VSI) option. He was authorized to be paid $6,619.86 for a period of 26 years, provided he remained affiliated with the Reserve Components. He was serving as a recruiter at the time of his separation.

He enlisted in the United States Army Reserve (USAR) on 1 October 1992 for a period of 3 years. He reenlisted in the USAR on 19 July 1994 for a period of 6 years. On 10 April 1996, he was initially ordered to active duty in the AGR Program for a period of 3 years. He was promoted to the pay grade of E-7 on 1 August 1998 and on 28 January 1999, his active duty commitment was extended to 18 July 2000, to coincide with his release from active duty (REFRAD) and expiration of term of service (ETS).

On 25 July 2000, TDY orders were published which allowed the applicant to travel from Puerto Rico (his duty station) to Miami, Florida, for the purpose of separation processing on 27 July 2000.

On 27 July 2000, the applicant's battalion commander informed him that he intended to initiate a recommendation to bar him from reenlistment. He cited as the basis for his recommendation that the applicant had indicated in the first week of June 2000 to his commander that he was getting out of the Army because he did not want to be a recruiter anymore, that he could not handle the stress, and that he relayed the same information to a psychiatrist. He went on to state that the applicant had been placed on 72 hours quarters and given leave in connection with the 4^th of July weekend. When the applicant returned, he requested permissive TDY in conjunction with separation transition and his request was granted. Additionally, the commander stated that the applicant had not put anyone into the Army in the last 90 days and that he had not been reprimanded because of his stated intent to separate. He also stated that if he were permitted to reenlist, it would mean that he had defrauded the Government. The applicant indicated that he desired to submit a statement in his own behalf.

Although not explained in the available records, the applicant was retained beyond his ETS to 31 July 2000, when he was honorably discharged due to completion of required service. He had served 4 years, 3 months and 21 days of active service during his current enlistment and had 17 years, 7 months and 26 days of total active service. He was paid for 45.5 days of accrued leave.

The applicant submitted a rebuttal to the bar to reenlistment on 2 August 2000 in which he contended, in effect, that the allegations were false. He stated that he had in fact recruited one person in May 2000 and that he had not defrauded the government by taking permissive TDY. There is no evidence in the available records to show that the bar to reenlistment was ever processed to completion.

On 17 August 2001, he again enlisted in the USAR for a period of 3 years.

A review of the e-mail message from officials at USAREC regarding an Inspector General (IG) inquiry pertaining to the applicant's status, indicate that officials had documents that clearly showed the applicant's intent to separate at ETS and that his uncertainty and indecisciveness placed both him and the chain of command in a predicament. Given the timeframe involved, a bar to reenlistment could not be processed nor could his reenlistment.

Army Regulation 140-111 prescribes policies, responsibilities and procedures for the USAR Reenlistment Program. It provides, in pertinent part, that normally a bar to reenlistment will not be initiated against a soldier within 90 days of when a soldier is to be discharged or transferred to another command. However, if is initiated during this period, an explanation from the commander is necessary to explain why action was not taken earlier. That regulation also provides that if otherwise qualified, a USAR member serving on active duty in an AGR status, may reenlist within 3 months of ETS.

Army Regulation 600-8-10 serves as the authority governing military absences. It provides, in pertinent part, that soldiers will be counseled in regards to their option to take either permissive TDY or excess leave in conjunction with separation. Only one of the two is authorized in conjunction with separation and no reimbursement is authorized for either. The applicant must submit a request in the form of a Request for Leave (DA Form 31) with justification for the request included. Personnel are not required to use their ordinary leave for the purpose of transition processing.

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. It appears that the issue in this case is whether the applicant was afforded sufficient opportunity to extend or reenlist prior to separation. While the Board does not have all of the information related to his separation, it appears that the applicant simply waited too late to make a decision.

2. The available evidence clearly shows that the applicant was granted permissive TDY and indicates at the time that the applicant had not decided to reenlist by the time he reached the 3-month mark, when a decision was required by the applicant.

3. Although the Board does not have the benefit of reviewing his request for permissive TDY, it is apparent by reading the justification for the initiation of the bar to reenlistment, that the applicant led the chain of command to believe that he did not want to reenlist.

4. While the Board does not necessarily agree that imposing a bar to reenlistment was appropriate, the action was not processed to completion and the applicant was not eligible for reenlistment by the time the bar was initiated because he was under his 3-month reenlistment window.

5. The Board also finds that the applicant bears a great deal of responsibility in this matter because he was a recruiter/senior noncommissioned officer and should have been routinely aware of the policies pertaining to reenlistment. Additionally, he should have been acutely aware that his failure to reenlist, whether in the AGR program (on active duty) or simply in the USAR in another capacity, could have resulted in his losing his entitlement to his VSI benefits. However, reenlistment is a volitional act that can only be exercised by the individual soldier and the applicant apparently made his choice known.

6. In any event, the applicant has failed to show through the evidence submitted with his application or the evidence of record, that his separation was in error or unjust. While he may have desired to extend or reenlist, he failed to make that decision within the timeframe prescribed by the applicable regulation and thus the Department was not obligated to allow him to do so once he had passed the deadline.

7. The Board has also noted the applicant's contention that he did not attempt to defraud the Government by taking permissive TDY. While the Board will not attempt to pass judgment on this matter, it appears that the applicant afforded himself of a benefit associated with personnel who intend to separate from the service in lieu of losing ordinary leave. In doing so, he sent a message that he no longer desired to remain on active duty. The bottom line here is that the Army does not offer a free vacation for soldiers to go home and think about or contemplate reenlistment. If this was the applicant's intent, he should have used ordinary leave.

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

__dj ____ ___jam __ __mm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078420
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/05/15
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2000/07/31
DISCHARGE AUTHORITY	AR635-200/CH4
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300/REINSTATE
2.
3.
4.
5.
6.