IN THE CASE OF:	  

	BOARD DATE:	13 May 2008

	DOCKET NUMBER:  AR20070002012 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be reinstated into the United States Army with full pay and benefits retroactive to 9 March 2005, the date of his discharge.

2.  The applicant essentially states that he was discharged illegally and without proper notice only a few days after his enlistment was extended for 3 months.  He also states, in effect, that a bar to reenlistment was initiated by his unit in November 2004, but was returned because it was insufficient and required further documentation.  He further states his unit attached further documentation and returned his bar to reenlistment to command headquarters in December 2004.  He continues by essentially stating that his normal expiration of term of service (ETS) was 9 December 2004, but that his enlistment was extended for 
3 months until 9 March 2005 pending the decision on his bar to reenlistment.  He also states the command’s decision on his bar to reenlistment was still pending on 8 March 2005, so his enlistment was extended another 3 months pending the decision and, if necessary, his appeal of his bar to reenlistment.  He further states that he was informed in a letter, dated 22 April 2005, that his bar to reenlistment was approved retroactively to 9 March 2005, the date of his ETS after the initial 3-month extension.  He also essentially states that between 
9 March 2005 and the time of his receipt of the 22 April 2005 letter, he had conducted himself as if he was still a member of the Active Guard Reserve (AGR), and had no reason to believe otherwise.  Additionally, he states that the retroactive bar to reenlistment forfeited his right to appeal that decision.  He also essentially states that the evidence of record clearly shows that his chain of command was not aware that he was being discharged on 9 March 2005. 
3.  The applicant provides a self-authored attachment, dated 25 January 2006; a memorandum, dated 22 April 2005, from the Adjutant of the 88th Regional Readiness Command (RRC) requesting an exception to policy for an antedated reenlistment on him; a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) which extended his ETS from 9 March 2005 to 7 June 2005; orders, dated 30 August 2004, as amended by orders, dated 3 January 2005, which reassigned him to the United States Army Transition Point, Fort Leavenworth, Kansas, with a reporting date of 9 March 2005; a memorandum for record, dated 1 April 2005, from the applicant’s company commander prior to his discharge on 9 March 2005, which indicated that the applicant was extended in the Army on 8 March 2005 for 90 days, and should receive back-pay as soon as this error has been corrected; DA Forms 31 (Request and Authority for Leave) which show that he was signed out on a 4-day pass on 1 April 2005 and on emergency leave on 5 April 2005; his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his discharge on 
9 March 2005; two documents showing that he changed his name from K______ D. Y______ to S______ 4_______; a 4-page, self-authored statement, dated 
9 May 2007, in support of his two applications.  Additionally, the American Legion provided 15 additional documents and a statement in support of the applicant’s application.

CONSIDERATION OF EVIDENCE:

1.  A review of the applicant’s military records in the Interactive Personnel Electronic Records Management System (iPERMS) yielded inconsistent information related to why the applicant was discharged on 9 March 2005.  The last four evaluations on the applicant, all while he was in the United States Army Reserve (USAR) AGR program, are marginal at best, and would indicate that the applicant should have been removed from the AGR program, but released back to the USAR, as at the time of his discharge on 9 March 2005, he had over 
18 years of qualifying service for non-regular retirement at age 60.  

2.  The crux of the applicant’s request is that he contends he was illegally discharged on 9 March 2005 without proper notice, and only a few days after his enlistment was extended for 3 months, until 7 June 2005.  As previously mentioned, the available information related to the applicant’s discharge is sketchy, but the available evidence does clearly show that the applicant was improperly discharged from the USAR while on active duty in the AGR program on 9 March 2005 at a point when he had over 18 years of qualifying service for 
non-regular retirement.  The available evidence in fact does show that on 

8 March 2005, the applicant’s ETS of 9 March 2005 was extended for 3 months until 7 June 2005, which effectively extended him in the AGR program until that date.  However, the DD Form 214 that was issued to him at the time of his discharge on 9 March 2005 shows that the narrative reason for his discharge was “Completion of Required Active Service,” and shows that he was assigned a reentry (RE) code of “1,” which indicated that he was fully eligible for reenlistment.  It was noted that in the months prior to the applicant’s discharge in March 2005, his Physical capacity/stamina, Upper extremities, Lower extremities, Hearing/ear, Eyes, Psychiatric (PULHES) was changed from 311111 to 311113, which indicated that he has awarded a physical profile in his psychiatric factor.  However, it was also noted that on 13 July 2007, the applicant enlisted in the Indiana Army National Guard, and that he was psychiatrically cleared for enlistment, with no limitations under the “S” portion of his PUHLES.

3.  Section 1176(b) of Title 10, U. S.C. states that, if on the date prescribed for the involuntary separation (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) from an active status of a reserve, and an enlisted member or officer is entitled to be credited with at least 18, but less than 20, years of service, he or she may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he or she is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  While the evidence in the available records would support the applicant’s removal from the AGR program, his abrupt discharge from the USAR AGR program on 9 March 2005, even after an extension of his enlistment was accomplished on 8 March 2005, which extended his ETS to 7 June 2005, was both improper and not in accordance with law.  As a result, it would be appropriate at this time to provide relief to the applicant in the form of:

	a.  voiding his discharge on 9 March 2005;

	b.  revalidating his 8 March 2005 extension of enlistment, which made his ETS 7 June 2005;



	c.  releasing him from active duty in the USAR AGR program on 7 June 2005 and transferring him to the USAR Control Group (Reinforcement);

	d.  authorize him an antedated extension of his enlistment in the USAR from 8 June 2005 to 12 July 2007, the date before he enlisted in the Indiana Army National Guard; and

	e.  authorizing him all back pay and allowances due to him for the period 
9 March 2005 through 7 June 2005.

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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:

      a.  voiding his discharge on 9 March 2005;

	b.  revalidating his 8 March 2005 extension of enlistment, which made his ETS 7 June 2005;

	c.  releasing him from active duty in the USAR AGR program on 7 June 2005 and transferring him to the USAR Control Group (Reinforcement);

	d.  authorize him an antedated extension of his enlistment in the USAR from 8 June 2005 to 12 July 2007, the date before he enlisted in the Indiana Army National Guard; and

	



	e.  authorizing him all back pay and allowances due to him for the period 
9 March 2005 through 7 June 2005.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070002012



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ABCMR Record of Proceedings (cont)                                         AR20070002012



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