RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      17 November 2005
      DOCKET NUMBER:  AR20040009500


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Ms. Jeanette R. McCants           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be awarded retirement points
for the period that he was denied the opportunity to serve and drill with
his unit, back pay and allowance for all drills and service that he could
have performed with his unit, consideration of promotion opportunities he
missed while he was kept away from his unit, and a refund of payments made
for coverage of SGLI (Service members Life Insurance) he was required to
make after he was restored to duty with his unit.

2.  The applicant states, in effect, that he has 25 "good years" and 33
years service for pay purposes but despite this service, the rank is not
there. He continues by stating that his career was interrupted and this
interruption through the actions of a sergeant major in his unit.  Because
of these actions, he endured a break in his career of some two and a half
years.

3.  The applicant submitted a copy of those documents that are listed on an
index to his application to the Board.  In addition, the applicant
submitted a renewed statement of retirement points and several leave and
earnings statements, for the Board's consideration in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was inducted into the
Army of the United States on 22 October 1970.  On 25 April 1972, the
applicant was released from active duty and was transferred to the US Army
Reserve.

2.  The applicant remained in the US Army Reserve earning only membership
points, at the rate of fifteen per year, until he was discharged from his
obligation under the Universal Military Training and Service Act on 25
February 1976.

3.  The applicant had a complete break in service from 26 February 1976
until 26 February 1977 when he enlisted in the US Army Reserve.  He has
remained in the Reserve serving continuously through a number of
enlistments.  The applicant was promoted to the pay grade E-7 with a date
of rank of 22 March 1982.

4.  On about 25 October 2001, in an undated letter to his Member of
Congress (MOC), the applicant asked for assistance in resolving the
problems he was experiencing with his Army unit.

5.  In the letter the applicant wrote to his MOC, he describes the events
that caused what he terms, "a break in his Army service career."

6.  The applicant wrote, in February 1999, after having completed a
course of study at the quartermaster school, he was assigned to the 6th
Brigade for duty as an instructor.  He was due to teach his first class
when he received a phone call from the command sergeant major.  He asked
if the applicant had completed twenty or more years of service.  The
applicant responded, "yes."  The command sergeant major then told him the
unit was downsizing and his time had run out.  The applicant replied that
he had at least fourteen months of service remaining and that he would
have time to be promoted to the pay grade E-8.  The command sergeant
major then told him not to teach the class but to go home and call the
unit in Georgia on Monday.

7.  The applicant states he called his unit in Georgia on Monday and spoke
to the full-time personnel person.  This person told him that he would get
back to him.  The applicant never received a call back from this person
during this time period (1999-2000).

8.  The applicant states that in the year 2000, he began calling his old
unit and spoke with an Army warrant officer.  She told him that the 9th
Brigade and the command sergeant major were incorrect for discharging him
from his duties.  He told her that he had also called the US Army Personnel
Center and a staff member there also told him that they, the command
sergeant major and the unit, were wrong for discharging him from his
duties.  The unit, he learned, had carried him as absent from the unit.
There was no justification for this because he received a leave and
earnings statement on a monthly basis from the unit.

9.  The applicant states that in August 2001, the warrant officer gave the
applicant the telephone number for the Judge Advocate General's Office for
the 108th Division.  He contacted a lieutenant colonel in that office and
explained what had occurred from February 1999 to that present date.  She
stated that she could not believe that they, the command sergeant major and
the unit, had the nerve to do this.  She stated that she would do an
investigation and would get back in touch with him.

10.  The applicant states that after a delay, the lieutenant colonel called
the applicant at home and told him the unit had no answers to the problems
they had created but that they had told her, "he had gotten lost in the
computer."
11.  The applicant states he returned to the 108th Division (Institutional
Training), 2nd Training Detachment (NCOES) [Noncommissioned Officer
Education System] and continued to have problems.  He received no pay
because of a huge SGLI bill due to the 9th Battalion's continuing to carry
him and, their failure to turn his records over to the proper Army
personnel.

12.  The applicant gives five reasons why something must be done to correct
the resultant problems that he has experienced, which follow:

      a)  "They were wrong for discharging me and putting a break in my
Army career for 2 and 1/2 years.

      b)  They kept my records, never releasing them to the Army Personnel
Center, not allowing me to be promoted in the IRR (Individual Ready
Reserve).

      c)  I was left with a large debt on my SGLI insurance as they
continued to carry my name in the unit.

      d)  I was denied drill pay all this time because no one is willing to
accept responsibility for his or her negligence and incompetence.  And,

      e)  I never received an official NCOER (Noncommissioned Officer
Evaluation Report)."

13.  The applicant concludes his letter to the MOC by requesting a written
apology and asking for assistance in receiving the missed drill points he
was unable to receive.  The anguish and the time this unit has cost him in
pursuing his career, he states, has been devastating.  He summarized that
he believes in the United States Constitution.  He has fulfilled his duties
as a Soldier from 1975 until this occurred in February 1999.  He thanks the
MOC for his support and efforts in assisting him in correcting these
problems.

14.  On 25 October 2001, the applicant's MOC replied to his request for
assistance in resolving the problems he was experiencing with the Army.  He
was told that the appropriate officials would be contacted and he would try
and resolve the matter as soon as possible.

15.  On 25 October 2001, Headquarters, 108th Division (Institutional
Training), Charlotte, North Carolina, published orders A-298-1, reassigning
the applicant
from the 4th Brigade (CSS [Combat Services Support]) to the 6th Brigade (PD
[Professional Development]).  The effective date of the reassignment was
the same as the date of the orders.  The additional instructions in the
orders stated that, "OER/NCOER will be prepared IAW AR 623-105 and AR 623-
205."

16.  On or before 8 January 2002, the applicant once again sought the
assistance of his MOC in resolving the issues he was experiencing with the
Army, to include his assignment and the debt he experienced after he
returned to duty, for SGLI premiums that had accrued while he was not
allowed to serve with his unit.

      a)  the applicant's unit had failed to properly transfer him to the
IRR.


      b)  the applicant's unit had failed to ensure his drill status,
denying him the opportunity to drill from February 1999 through 25 October
2001.


      c)  the request to have the SGLI debt waived was disapproved by the
Defense Finance and Accounting Service because:


           1)  this debt was ineligible for waiver considerations because
it was not an erroneous payment of a pay or allowance;



           2)  from February 1999 until October 2001, the applicant had
been carried in an excused absence status entitling him to SGLI benefits.
Essentially, the applicant was covered by SGLI benefits during the period
he was not drilling, thus he owed payment of the premiums for that period;



      d)  the applicant should be informed that he may submit a request for
reimbursement to the Army Board or the Correction of Military Records and
that when applying it is his responsibility to provide evidence to the
Board of this error (emphasis added) in order for the Board to consider his
application favorably (emphasis added).

17.  There is no evidence, and the applicant provided none to show, that he
was denied an opportunity for promotion to master sergeant during the
period of his absence from the unit.

18.  On his return to drilling status with his unit, the applicant went
before the promotion board in February 2003 and, on 1 March 2003, he was
promoted to the rank and pay grade, Master Sergeant, E-8.

19.  On 13 May 2003, the applicant submitted a request (assumedly to his
commander) requesting an, "Exception to the Rule" asking for a two year
extension of his career so that he could accumulate the maximum number of
years service which he had not yet attained due to "the 2 and 1/2 year
break in his Army service."  It is apparent this extension was granted in
view of the fact that he remains on drill status with this unit.

20.  On 17 October 2003, the US Army Human Resources Command,
published Orders C-10-324596 reassigning the applicant from the USAR
Control Group (Reinforcement) to a MOB TDA/TOE (Mobilization Table of
Distribution Authorization/Table of Organization and Equipment) unit, the
US Army Air Defense Artillery Center, Fort Bliss, Texas, for duty as a Food
Operations Manager, in the duty rank of Sergeant Major and the duty MOS
(Military Occupational Specialty), 92G50.

21.  With his application for correction of military records, the
applicant had submitted an AHRC Form 249-2-E, Chronological Statement of
Retirement Points, dated 25 March 2004.  This statement showed he earned
an average of 75 qualifying points per year each year since he enlisted
in the Reserve on 26 February 1977 through the date he was not allowed to
participate in drills with his unit.

22.  On 6 December 2004, the US Army Human  Resources  Command,  St.  Louis,
Missouri, prepared a memorandum,  Subject  [the  applicant],  for  the  Army
Review Boards Agency Support  Detachment,  St.  Louis.   A  Human  Resources
Assistant with  the  81st  Regional  Support  Team,  Personnel  Actions  and
Service Directorate stated that  they  concurred  with  the  Office  of  the
Inspector General, Washington, D.C. that his unit  had  failed  to  properly
instruct him about his drill responsibilities for the period of his  absence
from the unit; therefore, the command had  credited  his  retirements  point
account with a maximum of 50 points to give the applicant  an  additional  3
qualifying retirement years.

23.  On 21 October 2005, the applicant submitted an up-to-date statement
of retirement points.  This statement shows that since he was restored to
duty and allowed to participate in drills with his unit, 25 October 2001
through 25 February 2005, he earned an additional 197 retirement points
for an average of 66 points per year.  This statement also shows that for
retirement years ending 25 February 2000, 2001, and 2002, the applicant
was awarded 50 retirement points so that each year that he was not
allowed to participate with his unit would be counted as a "good year."

24.  The Army, in the Inspector General's letter to the applicant's MOC
acknowledged that the applicant had been the victim of an egregious error
and he deserved the opportunity to seek reimbursement for the monies he
paid the Army for the arrears in SGLI payments.  Because of the policies
and procedures that DFAS operates under, reimbursement of the monies paid
for the SGLI debt was not possible.  The applicant was provided the option
to apply to this Board for reimbursement of the funds under the ABCMR's
policies and guidelines.  It would be appropriate to provide the applicant
with financial relief on a one time, non-taxable basis, in the sum of
$385.46 to assist in the amelioration of the resultant financial injustice
and to compensate the applicant for the anguish and devastation that he
endured over this single issue.

25.  Title 10, U.S. Code, section 1552, the law which governs the operation
of the Army Board for the Correction of Military Records, states that “The
Secretary may pay, from applicable current appropriations, a claim for the
loss of pay, allowances, compensation, emoluments, or other pecuniary
benefits, or the repayment of a fine or forfeiture, if, as a result of
correcting a record under this section, the amount is found to be due the
claimant on account of his or another’s service in the Army, Navy, Air
Force, Marine Corps or Coast Guard, as the case may be.”

26.  Army Regulation 135-91 provides the Reserve Component policy for
participation requirements and enforcement procedures.  It provides, in
pertinent part, that members who have accrued 20-years of qualifying
service for retired pay must attain 50 retirement points annually to be
retained in an active status.  Soldiers failing to earn sufficient
retirement points will be processed for removal.

27.  Army Regulation 140-10 sets forth the basic authority for the
assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7
of the regulation relates to the removal of Soldiers from an active status
and states, in pertinent part, that Soldiers removed from an active status
will be discharged or, if qualified and if they so request, will be
transferred to the Retired Reserve.

28.  Army Regulation 140-185 (Training and Retirement Point Credits and
Unit Level Strength Accounting Records) provides the policy for training
and retirement point credits for members of the USAR.  It prescribes the
types of training and activities for which retirement points are
authorized.  It discusses the procedures for recording retirement point
credits and training for USAR Soldiers. It states, in pertinent part, that
the maximum for IDT and membership is 60 points.  Annual or Terminal
Statement of Retirement Points will report all
points earned.  Individuals will be awarded 15 membership points for each
year in an active status.  It further states that personnel on AD, active
duty training (ADT), inactive duty for training (IADT), involuntary ADT, or
AT are awarded 1 point for each calendar day they serve in one of these
categories and may not be awarded additional points for other activities
while in such status.  The following rules apply:  "(1) One point will be
awarded for each scheduled 4-hour period of IDT with a maximum of 2 points
in 1 calendar day; (2) One point for each 2 hour or greater period with a
maximum of 1 point in 1 calendar day; and (3) One point for each 2 hour or
greater period under the two/eight-hour rule."

29.  The term "good years" is an unofficial term used to mean years in
which 50 or more retirement points were earned during each year, and which
count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant had over 20 years of qualifying
service on the date he was precluded from drilling with his unit.  The
evidence further shows he consistently earned more than 50 retirement
points annually in an active status. There was no reason that the
applicant should be processed for removal and in fact was not transferred
to the retired reserve.  The applicant's unit continued to carry him on
the rolls in an "excused absence" status.

2.  The evidence shows that since his enlistment in the Reserve, the
applicant had consistently earned more than 50 retirement points per year.
In the years prior to the date he was not allowed to drill with his unit,
the applicant earned 1672 retirement points or an average of 75 points per
retirement year (an average of 44 Inactive Duty Points, 16 Active Duty
Points, and 15 Membership Points over the three year period before his
"excused absence)."

3.  The evidence shows that in the three years since he was restored and
allowed to participate in drills with is unit, the applicant earned an
additional 197 retirement points or an average of 66 points per year.

4.  The 81st Regional Support Team credited the applicant's retirements
point record with "a maximum 50 points" for the years ending 2000, 2001,
and 2002 to provide him with an additional 3 qualifying years of service.
 However, the evidence shows that awarding the applicant only 50
retirement points for these years severely shortchanged an otherwise
"excellent Soldier" who had consistently earned more than the minimum
number of retirement points each year of his Reserve career.

5.  The evidence is clear that had the applicant not been treated unfairly
and had he not been denied the authority to drill with his unit, the
reasonable and prudent person would conclude that the applicant would have
earned more than the fifty points that he has been credited with each year
that he was away from his unit.  Therefore, in the interest of justice and
equity, the applicant should be awarded not 50 retirement points per year
but 75 retirement points per year, for the years ending 2000, 2001, and
2002.

6.  The evidence also shows that during the period of his forced absence,
which was termed by his unit as an "excused absence," the applicant was
denied the opportunity to earn the pay and allowanced that would normally
have accrued to him had he been allowed to participate and drill with his
unit.  The applicant is entitled to all back pay and allowances that he was
denied based on the newly established number of retirements points
indicated in these proceedings and as a result of this correction.

7.  The evidence shows that his pay was drastically reduced due to the DFAS
collection action for payment of SGLI premiums that had not been paid, due
to his units continuing to carry him on its rolls and, their failure to
turn his records over to the proper Army personnel.

8.  The issue of reimbursing or waiving the SGLI debt was addressed by the
DFAS.  In their advisory to the applicant's MOC, it was explained that:

      a)  this debt was ineligible for waiver considerations because it was
not an erroneous payment of a pay or allowance; and


      b)  that during the period from February 1999 until October 2001, the
applicant had been carried in an excused absence status entitling him to
SGLI benefits.  Essentially, the applicant was covered by SGLI benefits
during the period he was not drilling, thus he owed payment of the premiums
for that period; and


      c)  that the applicant should be informed that he may submit a request
for reimbursement to the Army Board or the Correction of Military Records
and that when applying it is his responsibility to provide evidence to the
Board of this error (emphasis added) in order for the Board to consider his
application favorably (emphasis added).
9.  From the verbiage expressed by the Office of the Inspector General,
there was acknowledgement, of sort, that the applicant had been the victim
of an egregious error and he deserved the opportunity to seek reimbursement
for the monies he paid the Army for the arrears in SGLI payments.

10.  It is reasonable to assume that after the applicant was restored and
began to drill with his unit that his income from his Reserve activities
was reduced to a level that he was not accustomed to and this added to the
anguish and the devastation that he was already experiencing as a result of
his unit's actions.  The applicant is therefore entitled to a one-time, tax-
free payment of $385.46; not as reimbursement for the SGLI premiums that he
was required to make up on his return to his unit but for the injustice,
anguish, and devastation that he endured over this single issue.

11.  There is no evidence, and the applicant provided none to show, that he
was denied an opportunity to compete for promotion to master sergeant
during the period of his absence from the unit.

12.  The evidence shows that after his return to drilling status with his
unit, the applicant went before the promotion board in February 2003 and
was promoted to the rank and pay grade, Master Sergeant, E-8, on 1 March
2003.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JRM_  __LE____  __JED __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

      a.  awarding the applicant 75 retirement points per year, for the
retirement years ending 2000, 2001, and 2002 as opposed to the 50 points
now shown on his chronological statement of retirement points;

      b.  adjusting the 50 points that the applicant was awarded and which
are now shown on his retirement points summary statement to 75 points and
having these points permanently entered into the chronological statement of
retirement points to prevent the possibility of any future miscalculations
that may occur or that may effect the applicant’s future retirement
eligibility;

      c.  having the DFAS audit the applicant's military pay records for
the retirement years ending 2000, 2001, and 2002 and paying the applicant
all back pay and allowance he was denied by his unit's action of having
disallowed his participation in training and drills, less any pay and
entitlements which have already been paid him.  Payment is to be made on
the basis of 75 retirement points per year for each of these years.

      d.  following completion of the administrative action required by
Paragraph 1b, above, that the Army Human Resources Command (AHRC)–St.
Louis recalculate the retirement points of the individual concerned, and
issuing him a corrected Chronological Statement of Retirement Points; and


      e.  providing the applicant a one-time, tax-free payment of $385.46;
not as reimbursement for the SGLI premiums that he was required to make up
on his return to his unit but for the injustice, anguish, and devastation
that he endured over this single issue.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
referral of the applicant's records to a standby promotion board for
consideration for promotion to master sergeant, E-8.




                                  ___      Lester Echols____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009500                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051117                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  334  |135.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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