RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 October 2005
      DOCKET NUMBER:  AR20040011713


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry                 |     |Member               |
|     |Mr. Robert Rogers                 |     |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 his 10 February 2003
reenlistment contract be voided.

2.  The applicant states he never reenlisted.  The contract was voided last
year but somehow remained in his records.  He separated from the active
Army in June 2002.  To receive separation pay he had to enlist in the
Individual Ready Reserve (IRR) for 3 years.  In January 2003, he received a
letter about reenlisting in the IRR.  He did not understand why, so he
called the point of contacted listed in the letter and was put in touch
with a Sergeant L___.  Sergeant L___ informed him he still owed the Army
time.  The applicant could not understand why, but Sergeant L___ said it
was "just the IRR" and "just time" and emailed the applicant the
reenlistment paperwork.  The applicant completed the paperwork but informed
Sergeant L___ he did not know any officers to sign it. Sergeant L___ told
him he would take care of that and it was not that important because he was
only reenlisting in the IRR.

3.  The applicant states a week later he received a call from a local
recruiter who had tried in the past to get him into the active Reserve.
During their conversation he discovered he did not have to reenlist in the
IRR and his obligation ended in June 2003.  He immediately called Sergeant
L___, who said he would check on it.  Sergeant L___ called him back two
days later and informed the applicant he (the applicant) was right and his
contract would be voided.  The applicant thought he was finished with the
Army until he received orders for active duty.  Block 5 on page 2 of the
contract stated he reenlisted due to the fact he had an unfulfilled portion
of a current statutory military service obligation.  He did not have any
such obligation.

4.  The applicant also states he does not know who the officer is who
signed the contract.  He was never sworn in, reenlisted, or had any type of
ceremony by that person.

5.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a 1st endorsement to his active duty
separation orders; a DA Form 5691-R (Request for Reserve Component
Assignment Orders); his 4 April 2004 U. S. Army Reserve (USAR) enlistment
contract; Troop Program Unit (TPU) assignment orders dated 30 April 2001; a
10 February 2003 USAR enlistment contract; and two sets of amendments,
dated 17 September 2004 and 30 September 2004, apparently amending a set of
active duty orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 June 1985.

2.  On 4 April 2000, the applicant signed an enlistment contract enlisting
in the IRR for 3 years.  His DA Form 5691-R, dated 4 April 2000, correctly
indicated his expiration term of service (ETS) was 14 June 2000.

3.  The applicant was honorably discharged on 14 June 2000, in the rank of
Sergeant, E-5, after completing 15 years and 4 days of creditable active
service upon reaching his retention control point.  He was assigned to the
IRR.

4.  On orders dated 30 April 2001, the applicant was transferred to a TPU.
The orders erroneously indicated his ETS was 3 April 2003.

5.  The applicant completed and signed an enlistment contract dated 10
February 2003 reenlisting in the IRR for 6 years.  The applicant initialed
item 5 of Section IV (Service Obligation) of his DA Form 3540 (Certificate
and Acknowledgment of U. S. Army Service Requirements and Methods of
Fulfillment) which states:

      IMMEDIATE REENLISTMENT IN THE U. S. ARMY RESERVE.  I am a current
member of the U. S. Army Reserve and I am reenlisting to continue my
membership in the U. S. Army Reserve.  If I am serving under an incurred
statutory military service obligation, I have reenlisted in the U. S. Amy
Reserve for a term of service that is equal to, or greater than, the
remaining unfulfilled portion of my current statutory military service
obligation.

6.  Colonel Augustin R___, identified as U. S. Air Force, retired, signed
the DD Form 4/2 (Enlistment/Reenlistment Document – Armed Forces of the
United States) in item 14 (Service Representative Certification).  Item 14a
stated:

      "On behalf of the United States (list branch of service) ________, I
      accept this applicant for enlistment.  I have witnessed the signature
      in item 13b to this document.  I certify that I have explained that
      only those agreements in Section B of this form and in the attached
      Annex(es) will be honored, and any other promises made by any person
      are not effective and will not be honored."

The branch of service was not listed in item 14a.

7.  Colonel Augustin R___ signed the DD Form 4/2 in item 19
(Enlistment/Reenlistment Officer Certification) certifying he administered
the oath of reenlistment to the applicant.  Item 19d (Unit/Command Name)
contained the entry "Dep. Chf of Ops (USAF)".  Item 19g (Unit/Command
Address (City, State, ZIP Code) contained Colonel R___'s home address.

8.  Colonel Augustin R___ signed as the witnessing official in section XI
of the DA Form 3540.  He certified that he "read and explained all of the
conditions and stipulations concerning service obligations, methods of
fulfillment, and satisfactory participation as set forth above under which
the individual is, or will become, a member of the Selected or Ready
Reserve of the U. S. Army Reserve.  Following this reading and explanation,
a copy of this certificate was furnished the above named individual".

9.  The applicant was ordered to active duty around September 2004.  The U.
S. Army Human Resources Command – St. Louis (USAHRC –STL) informed the
Board analyst on 6 September 2005 his active duty orders had been revoked
in December 2004.

10.  In the processing of this case, an advisory opinion was obtained from
the Director, Western Region, USAHRC – STL.  The Director opined the
applicant stated he was provided erroneous information by that Command
regarding his severance (i.e., separation) pay when he was released from
active duty.  The Director opined that, in accordance with Army Regulation
135-178, chapter 7, a Soldier may be discharged on the basis of an
erroneous enlistment, reenlistment or extension of enlistment.  An
enlistment, reenlistment, or an extension is erroneous only if it would not
have occurred had the relevant facts been known by the Government or had
appropriate regulations been followed.  The Director opined there was no
evidence the Command misinformed the applicant and that his reenlistment
contract was on file.  A copy of his reenlistment contract was provided.

11.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  The applicant noted the advisory opinion stated an
enlistment, reenlistment or an extension is erroneous only if it would not
have occurred.  He rebutted that was one of the facts used as a basis for
his request.  He never reenlisted or extended his time in the IRR.  His
contract was incomplete when he sent it to Sergeant L___ as he never had
any type of reenlistment ceremony and was never sworn in and he did not
know who the retired officer was who signed the contract.  He was given
erroneous information as he did not owe the IRR any more time.

12.  The Department of Defense Financial Management Regulation, Volume 7A,
paragraph 35-2-1 states, in order to be eligible for full separation pay, a
Soldier must: (1) have completed at least 6 years but fewer than 20 years
of active service; (2) have received a service characterization of
honorable or under honorable conditions (general); (3) be fully qualified
for retention but denied reenlistment; and (4) have entered into a written
agreement with the Military Service concerned to serve in the Ready Reserve
of a Reserve Component for a minimum period of 3 years following the
separation from active duty.

13.  Army Regulation 601-209 (In-Service Recruiting Program) establishes
Department of the Army policy governing the In-Service Recruiting Program,
which is designed to retain qualified service members within the Total
Army.

14.  Army Regulation 601-280 (Army Retention Program) prescribes criteria
for    the Army Retention Program for (1) immediate reenlistment or
extension            of enlistment of Soldiers currently serving in the
Active Army and (2) enlistment/transfer and assignment of Soldiers
processing from the Active     Army to the Reserve Components of the Army.

15.  Chapter 7 (Enlistment/Transfer Processing of Soldiers from the Regular
Army to the Reserve Components), paragraph 7-9 of Army Regulation 601-280
states Soldiers enlisting or transferring into the USAR may consummate
their enlistment transfer documents no earlier than 120 days prior to
release from active duty.  Paragraph 11-8 states the effective date of a
Reserve Component enlistment is the day after discharge from the Regular
Army.  The date on the enlistment or transfer documents will be the date
the action is consummated.

16.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program),
paragraph 7-4 states when an IRR Soldier is to be processed for immediate
reenlistment, USAHRC – STL will send the Soldier a partially completed DD
Form 4-series, a DA Form 3540, and a detailed letter of instruction
explaining to the Soldier the requirements that must be completed for
immediate reenlistment. The letter will also explain the requirements to
the activity that will assist in the reenlistment processing.  Upon
receiving the partially completed documents, the Soldier will follow the
letter of instruction.  An officer will be needed to administer the oath of
enlistment.  This officer and assistance in the reenlistment processing may
be found at the nearest USAR Training Center, at any U. S. Armed Forces
activity or installation, or as directed by the letter of instruction.  The
activity that assists in the reenlistment processing will complete the
required items on the DD Form 4-series, complete and certify the DA Form
3540, have a commissioned officer administer the oath of enlistment, and
distribute the completed forms.

17.  A copy of the letter of instructions sent by USAHRC – STL to IRR
Soldiers was obtained.  The letter of instructions informs the Soldier he
or she need not be in uniform or have a military haircut to reenlist but
must meet the weight requirements prescribed by Army Regulation 600-9.  All
height/weight testing must be accomplished prior to the signing of the
contract by properly trained personnel.  The reenlisting officer will
administer the oath of reenlistment.  A flag of the United States is
required to be displayed prominently nearby where the oath is being
administered.

18.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted
Administrative Separations), paragraph 7-2 states a Soldier may be
discharged on the basis of an erroneous enlistment, reenlistment, or
extension of enlistment. An enlistment, reenlistment, or an extension of
enlistment is erroneous if it would not have occurred had the relevant
facts been known by the Government or had appropriate regulations been
followed; (2) it was not the result of fraudulent conduct on the part of
the Soldier; and (3) the defect is unchanged in material respects.

19.  On 6 September 2005, Colonel R___ informed the Board analyst he does
not know the applicant and did not remember ever reenlisting any Army
Soldier, much less the applicant.  On 12 September 2005, Colonel R___
provided a statement certifying he did not administer an oath of
reenlistment to the applicant on 10 February 2003.

20.  A copy of the Conversation Record and Colonel R___'s statement were
provided to the applicant for comment.  He responded by stating the
conversation record is further proof of his claim a mistake as made with
his [reenlistment] paperwork.

DISCUSSION AND CONCLUSIONS:

1.  The advisory opinion failed to properly address the applicant's
contentions.  The applicant did not state he was provided erroneous
information by USAHRC – STL regarding his separation pay when he was
released from active duty.  He stated he was erroneously told he still had
a service obligation at the completion of his 3-year USAR enlistment that
was effective 15 June 2003.  The advisory opinion failed to address the
applicant's contention he was never administered the oath of reenlistment
on 13 February 2003, which would have made his reenlistment contract of
that date invalid.

2.  When the applicant separated from active duty in 2000 after completing
over 15 years of active Federal service, he understood that in order to
receive separation pay he must enlist in the USAR Ready Reserve for at
least 3 years.  He took steps to do so.  Although he signed his USAR
enlistment contract on       4 April 2000, in accordance with the
regulation that contract did not become effective until he separated from
active duty, i.e., on 15 June 2000.  Therefore, his USAR ETS was 14 June
2003.

3.  In April 2001, the applicant transferred to a TPU.  The reassignment
orders erroneously stated his ETS was 3 April 2003, indicating records at
USAHRC – STL may have reflected an ETS date based upon the consummation
date of his USAR enlistment rather than the effective date of his USAR
enlistment.

4.  The applicant contends he signed the 13 February 2003 reenlistment
contract only because he was told he still had a remaining obligation.
Someone at USAHRC – STL may have believed he still had a remaining
obligation if USAHRC – STL records had reflected an ETS based upon the 4
April 2000 consummation date of his USAR enlistment.  However, his ETS was
actually    14 June 2003, on which date his 3-year contractual obligation
ended.

5.  It is noted the applicant is misreading item 5, section IV of the DA
Form   3540.  That item does not state he had an obligation; it stated if
he was serving…service obligation.

6.  The governing regulation states an officer will be needed to administer
the oath of enlistment.  This officer and assistance in the reenlistment
processing may be found at the nearest USAR Training Center, at any U. S.
Armed Forces activity or installation, or as directed by the letter of
instruction.  The letter of instruction does not direct a different course
of action, so it is presumed USAHRC – STL requires the reenlistment to take
place at the nearest USAR Training Center or any U. S. Armed Forces
activity or installation.

7.  The regulation requires that the activity that assists in the
reenlistment processing complete the required items on the DD Form 4-
series, complete and certify the DA Form 3540, have a commissioned officer
administer the oath of enlistment, and distribute the completed forms.  The
DD Form 4/2 even provides a block (item 19d) where the name of the unit or
command where the reenlistment processing took place is to be entered.
However, in this case a unit or command name was not entered -- Colonel
R___'s title was entered.  The DD Form 4/2 provides a block (item19g) where
the address of the unit or command where the reenlistment processing took
place is to be entered.  However, in this case a unit or command address
was not entered – Colonel R___'s home address was entered.

8.  Given that Colonel R___ denies ever reenlisting any Army Soldier, much
less the applicant, and given the evidence on the applicant's 13 February
2003 reenlistment contract that indicate regulatory guidance was not
followed, it would be equitable to discharge the applicant due to erroneous
reenlistment.

BOARD VOTE:

__bje____  __hof___  __rr____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
discharging him from the USAR with an honorable characterization of service
under the provisions of Army Regulation 135-178, paragraph 7-2 within 120
days of this Board action.




            __Barbara J. Ellis____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011713                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |112.06                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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