PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 October 2003
         DOCKET NUMBER: AR2003085049


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

Mr. Carl W. S. Chun		Director
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Linda D. Simmons		Member
Ms. Marla J. N. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests correction to his assignment date to the 94^th Regional Support Command (RSC) from 10 March 2000 to 17 December 1999 or 12 January 2000.

3. The applicant states that he requested a compassionate reassignment to gain custody of his daughter. He left American Samoa and sought attachment with the 94^th RSC pending assignment orders to take custody of his daughter. He also states that his unit failed to process attachment orders and his request for reenlistment. He was reenlisted on 28 January 2000 and reenlistment orders were dated 10 March 2000. This resulted in a loss of 60 days accrued leave when he had been working at the 94^th RSC the entire time pending reassignment orders. In support of his application he submits a brief summarizing the events, copies of his compassionate reassignment request, his request for a reenlistment packet, his sign-in at the 94^th RSC and copies of electronic mail correspondence between himself and staff members of the 94^th RSC.

4. The applicant’s military records show that he reenlisted for 6 years in the Reserve with prior service on 15 April 1994. His expiration of term of service date was 14 April 2000.

5. On 7 January 1999, he was ordered to active duty in the Active Guard/Reserve (AGR) program with a reporting date of 2 April 1999.

6. On 23 November 1999, while serving in an AGR status as a member of the 793^rd Engineer Detachment (Utilities), Pago Pago, American Samoa he was notified that the Department of Social Services had filed a petition in the Boston Juvenile Court alleging that his child was in need of care and protection. On 7 December 1999 he requested a compassionate reassignment to Headquarters, 94^th RSC, Fort Devens, Massachusetts to gain sole custody of his daughter. In his request the applicant stated that he was currently assigned to a remote hardship location and was not authorized an accompanied tour status. On 9 December 1999, his commander recommended approval.

7. On 12 January 2000, the Compassionate Review Board convened and approved his request. He reenlisted on 28 January 2000.

8. On 4 March 2000, a staff member with the 94^th RSC contacted a staff member of the Army Reserve Personnel Command (AR-PERSCOM) for assistance in obtaining reattachment orders for the applicant. The staff member of the 94^th RSC stated the applicant had been advised that his request for compassionate reattachment had been approved and the orders issued. During a visit by the




applicant to AR-PERSCOM, he was advised that the order had not been published. After numerous telephone inquiries, it was revealed the applicant needed to reenlist before orders could be published. As a result, the applicant and his unit of assignment arranged for the applicant to reenlist at Fort Meade. The applicant reenlisted. Confirmation was received on 7 February 2000 that the compassionate reattachment and reenlistment were approved and orders would be published that week.

9. On 13 March 2000, the 94^th RSC received the applicant’s assignment orders. On 14 March 2000, revocation orders of his permanent change of station (PCS) were forwarded to the applicant’s unit along with a new PCS order published on 10 March 2000.

10. On 26 November 2001, the Inspector General, 94^th RSC contacted a staff member with AR-PERSCOM concerning the applicant’s problem. The IG stated that the applicant arrived on 17 December 1999 and was signed in by the RSC based on a verbal approval received from AR-PERSCOM. As the effective date requested was 17 December 1999, the 94^th RSC treated this as a PCS and signed the soldier in as of 17 December 1999. A staff member from AR-PERSCOM was later advised that orders for the applicant’s reassignment had not been published and the soldier needed to reenlist prior to issuing orders. The soldier’s reenlistment was accomplished and on 10 March 2000, orders were issued with an effective date of 10 March 2000.

11. The IG further stated that this had caused a number of problems for the soldier. The soldier was concerned about the amount of leave taken from him while he and the command were under the impression that the PCS orders would have an effective date of 17 December 1999, as requested. The soldier was still showing a negative leave balance at that time, almost 2 years from the time he originally signed into his command. The IG requested that the applicant’s effective PCS date be adjusted to reflect the 17 December 1999 date the soldier was signed in and possible amendment to the orders published on 10 March 2000.

12. Army Regulation 140-30 prescribes the policies and procedures for selecting, assigning, attaching, managing and administering USAR soldiers on active duty in the AGR program. Section 4 of this regulation specifies that upon approval of the compassionate reattachment the soldier will be notified and follow normal PCS reattachments and stabilization policy. Paragraph 5-8(2)(c) of the regulation also states that in emergency situations only, the PSST/PSC, may attach soldiers who are in a leave status for up to 30 days. This will be for processing requests for compassionate or hardship attachments when the soldier has documented the emergency.

13. Army Regulation 140-111 prescribes the policies and procedures for the USAR Reenlistment Program. Table 2-7, note 7 of this regulation specifies that a soldier scheduled for a PCS having 1-year or less remaining on his or her current enlistment or reenlistment agreement, must immediately reenlist for at least 3 years prior to the PCS. Should the solider decline reenlistment, the PCS will be cancelled and the soldier will be discharged or released from active duty, as appropriate, at the ETS date of the current enlistment or reenlistment agreement.

CONCLUSIONS:

1. The applicant is entitled to correction to his assignment date to the 94^th RSC from 10 March 2000 to 28 January 2000, the date of his reenlistment.

2. The applicant requested a compassionate reassignment on 7 December 1999 and sought attachment with the 94^th RSC pending assignment orders. Subsequent to his relocation from the American Samoa to Fort Devens, Massachusetts, it was determined that the applicant needed to reenlist before orders could be published for his reassignment. As a result, the applicant’s unit arranged for the applicant to reenlist and the applicant reenlisted on 28 January 2000. Orders were finally published for his assignment to the 94^th RSC with an effective date of 10 March 2000. Due to orders for the applicant’s reassignment not being published, he was placed in a negative leave situation.

3. The applicant, in good faith, proceeded to his next duty station based on approval of his compassionate reassignment request. The applicant and his unit were not notified that he needed to reenlist before his orders could be published. Due to no fault of the applicant, his assignment orders were not published until after his reenlistment. Had the applicant been made aware of the need to immediately reenlist prior to his PCS, his orders would have been published and he would have been assigned to the 94^th RSC effective 17 December 1999.

4. This Board concludes that the applicant reenlisted as soon as he was notified of this requirement on 28 January 2000 and his assignment orders to the 94^th RSC should be corrected to this date. Evidence clearly shows that it was the intent of the applicant’s command to publish orders for assignment to the 94^th RSC as soon as possible and it would also be appropriate to now show that he was in an attached status with the 94^th RSC effective 17 December 1999.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.





RECOMMENDATION:

1. That all of the Department of the Army records related to this case for the individual concerned be corrected:

a. by voiding his assignment orders, dated 10 March 2000, declaring them of no force or effect;

b. by showing he was attached to the 94^th Regional Support Command, Fort Devens, Massachusetts effective 17 December 1999; and

c. by showing he was assigned to the 94^th Regional Support Command, Fort Devens, Massachusetts effective 28 January 2000.

2. That after implementation of the foregoing, DFAS correct any entitlements to pay or leave as appropriate.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

_MJNT___ _LDS__ __RJW_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond J. Wagner_
                  CHAIRPERSON

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INDEX

CASE ID	AR2003085049
SUFFIX
RECON
DATE BOARDED	20031028
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Partial
REVIEW AUTHORITY
ISSUES 1.	100.00
2.	100.20
3.
4.
5.
6.