RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060011131 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Paul Smith

Chairperson

Mr. David Haasenritter

Member

Mr. Edward Montgomery

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, transfer to the Individual Ready Reserve (IRR).

2.  The applicant states, in effect, that upon being discharged from the Active Guard Reserve (AGR) he was placed into the IRR.  He contends that he was found eligible for promotion on 27 January 2006, that he was approved to come back on the AGR program on 13 March 2006, and that he was selected for promotion to Major on 21 June 2006.  He also states that on 17 July 2006 officials at the U.S. Army Human Resources Command in St. Louis, Missouri (AHRC-STL) found a problem in the database and that his records were archived on this date.  He further states that two commands have submitted a by-name request for him for two AGR positions; however, since his records were archived the accessions branch can not support the by-name requests.   

3.  The applicant provides two letters, dated 21 December 2005 and 13 March 2006, from AHRC-STL; a Reserve Components Army promotion list; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 October 2004.

CONSIDERATION OF EVIDENCE:

1.  Having prior inactive and active service in the U.S. Army Reserve (USAR) and the Army National Guard, the applicant transferred back to the USAR on 25 April 1990.  He entered active duty on 21 October 1997 as a first lieutenant in the USAR.

2.  The applicant submitted a request for resignation in lieu of elimination on an unknown date.  A message from the Commander, HRC, Alexandria, Virginia, dated 21 September 2004, states the applicant’s request was approved.  This message also states that the applicant would be discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 
600-8-24, chapter 4, for misconduct, moral or professional dereliction, and the separation program designator (SPD) code would be “BNC.”  

3.  Discharge orders, dated 22 September 2004, show that the applicant was discharged on 1 October 2004 from the USAR/Active Guard Reserve under the provisions of Army Regulation 600-8-24 and issued a general discharge.

4.  Item 24 (Character of Service) on the applicant’s DD Form 214 for the period ending 1 October 2004 shows the entry, “HONORABLE.”  Item 25 (Separation Authority) on his DD Form 214 shows the entry, "AR [Army Regulation] 600-8-24 PARA [paragraph] 3-5."  Item 26 (Separation Code) on his DD Form 214 shows the entry, "FND."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "MISCELLANEOUS/GENERAL REASONS." 

5.  The applicant’s Army National Guard Current Annual Statement, prepared on 1 November 2006, shows he is currently in the Mississippi Army National Guard.

6.  In the processing of this case, a staff advisory opinion was obtained from     the Chief, AGR Separations/Retirements Team.  The opinion states that the applicant was found disqualified for further military service and that he was properly discharged from the AGR program as directed by a message from the Commander, HRC due to accepting his resignation in lieu of elimination.  The opinion points out that item 9 (Command to Which Transferred) on his DD Form 214 for the period ending 1 October 2004 was properly prepared to reflect the entry, “NA” [not applicable]; however, item 26 on this DD Form 214 has the wrong separation code (FND).  The opinion states the applicant was not transferred to the IRR as he states and that there is no question that a coding error was made at the time he was removed from the AGR management information system in that the code transferring him to the IRR was inadvertently used instead of the code to reflect no further military status.  The opinion states that this simple mistake in updating a database should not be a basis for allowing this former Soldier to return to military status since he was being considered for elimination and elected to voluntarily resign.  The opinion states that while the applicant indicates that he was selected for promotion as well as for reentry into the AGR program, it is unlikely either of these favorable actions would have occurred had both the promotions directorate and the AGR accessions branch known the correct facts with regards to his pending elimination action. 

7.  The advisory opinion was provided to the applicant on 5 February 2007 for comment or rebuttal.  The applicant did not respond within the given time frame.

8.  Army Regulation 135-18 (The Active Guard Reserve Program) establishes policies and prescribes procedures for obtaining, administering, and separating Army National Guard of the United States and USAR Soldiers serving as members of the AGR Program.  Rule E1b of Table 2-3 (Nonwaivable disqualifications for entry in the AGR Program) states that resignation in lieu of an adverse personnel action is a nonwaivable disqualification for entry into the AGR.

9.  Paragraph 1-21 of Army Regulation 600-8-24 (Officer Transfers and Discharge) states that acceptance of the resignation or the discharge of an officer in a Regular Army or Reserve status, unless otherwise specified in this regulation, will result in appropriate action being taken to terminate any warrant or temporary commission he or she may be holding simultaneously. 

10.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the OMPF, the MPRJ, the Career Management Individual File, and the Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that elimination board proceedings or resignations instead of board proceedings would be filed in the General Administration portion of his OMPF.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant’s request for resignation in lieu of elimination was approved on 21 September 2004 and he was discharged from the USAR/AGR on 1 October 2004 with no further military status.  His commission was terminated effective that date.  Therefore, his administrative transfer to the IRR was erroneous.    

2.  Evidence of record shows that several entries on the applicant’s DD Form 214 for the period ending 1 October 2004 are incorrect (i.e. items 24, 25, 26, and 28).    
3.  The applicant contends that upon his discharge from the AGR he was placed in the IRR.  However, the advisory opinion states that he was not transferred to the IRR and that there is no question that a coding error was made at the time he was removed from the AGR management information system in that the code transferring him to the IRR was inadvertently used instead of the code to reflect no further military status.  

4.  Because the applicant was erroneously transferred to the IRR, his subsequent promotion (which appears may have been made without the promotion board having access to his request for resignation in lieu of elimination packet) was erroneous.

5.  In accordance with Army Regulation 135-18, Table 2-3, Rule E1b, because he resigned in lieu of elimination, he is not eligible for the AGR. 

6.  Evidence of record shows the applicant is currently in the Mississippi Army National Guard.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

PS_____  __DH___  __EM____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



__Paul Smith__________
          CHAIRPERSON




INDEX

CASE ID
AR20060011131
SUFFIX

RECON

DATE BOARDED
20070501
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
135.0100
2.

3.

4.

5.

6.