RECORD OF PROCEEDINGS`


	IN THE CASE OF:	  


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070007709 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald Steenfott

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 her term of service option be changed to show a 6 year active Reserve service obligation with all incentives available to her, at the time or her enlistment. 

2.  The applicant states, in effect, that the Army failed to fulfill its enlistment contract with her.  

3.  The applicant provides a copy of her enlistment contract in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) on 17 May 2000, in pay grade E-3, for 8 years, with an established expiration of term of service (ETS) of 16 May 2008, in Mechanicsburg, Pennsylvania (PA).  She was trained as a medical specialist, in military occupational specialty (MOS), 91B.

2.  Item 32 (Specific Option/Program Enlisted For, Military Skill, or Assignment to a Geographical Area Guarantees), of DA Form 1966 (Record of Military Processing – Armed Forces of the United States), shows the entry "IAW (in accordance with) AR (Army Regulation) 601-210, Standard Training Program, Det (Detachment ) 1, 339th CS (Combat Service), 2997 N (North 2nd St (street), Harrisburg, PA  17401, WSCATO (Unit Identification Code) 3x5, 91B."

3.  Item 1, Section IV (Service Obligation), of DA Form 3540 (Certificate and acknowledgement of USAR Requirements and Methods of Fulfillment), pertains to initial enlistment as a non-prior service applicant.  The applicant initialed in this block and indicated that she understood that she would incur a statutory military service obligation of 8 years.  Her contract reflected that she was to serve this obligation by serving 3 years as an assigned member of a troop program unit (TPU) in the Selected Reserve and 5 years as an assigned member of the Individual Ready Reserve (IRR) unless she voluntarily elects to remain assigned and continue to satisfactorily participate as a member of a TPU.  

4.  Section VIII, of DA Form 3540, pertains to order to active duty and mobilization.  The applicant understood that during the entire time of her membership in the USAR she may, at any time, be involuntarily ordered to active duty as a member of a unit, or as an individual if not assigned to a unit, during a 


period of selective, partial, full, or total mobilization, or under any other conditions authorized by law in effect at the time of this service agreement or that subsequently may be enacted into law.

5.  Item 5, of DA Form 3286-67 (Statement of Understanding [Army Policy]), indicates that she enlisted for no Educational Incentive Programs.  She initialed under the appropriated column for each program MGIB (Montgomery GI Bill), ACF (Army College Fund), and LRP (Loan Repayment Program).

6.  On 20 January 2005, the applicant was released from her TPU, the 339th MC (Medical Corp) Company (Hub), Detachment 1, Harrisburg, Pennsylvania, and reassigned to a TPU outside the command, 91st HHD (Headquarters and Headquarters Detachment) 3rd Battalion, 360 Regiment CS (Combat Support)/CSS (Combat Service Support), Salt Lake City, Utah.

7.  On 8 May 2005, the applicant was ordered to active duty for 365 days for the purpose of Mobilization for Operation Enduring Freedom (OEF) (Other Than Homeland). 

8.  The applicant was promoted to staff sergeant (SSG/E-6) effective 1 September 2005.

9.  The applicant was released from active duty on 31 January 2006 and was returned to her TPU in Harrisburg, Pennsylvania.  On an unknown date, she was transferred to the USAR Control Group.

10.  On 30 April 2007, the applicant was released from the USAR Control Group (Reinforcement) and was assigned to a TPU under the command and control of the 96th RRC (Regional Readiness Command). 

11.  On 18 May 2007, the Human Resources Officer (HRO), Headquarters, 96th RRC, prepared a memorandum for the Commander, USAR Command (USARC), Subject:  Congressional Inquiry, pertaining to the applicant. The HRO states that the applicant contracted with the Pennsylvania Recruiting Command on 17 May 2000, and signed a 3x5 enlistment contract with no benefits (3 years as a Drilling Reserve Soldier and 5 years in the IRR).  She completed her 3 year contractual agreement on 16 May 2003 and later moved to Utah, thinking she had completed her contract.  Following her move to Utah, she received a transfer from the 339th MC Co, Harrisburg, PA to 91st HHD, 3rd Battalion, 360th Regiment effective 
20 January 2005 and put on alert for mobilization.  She was released from 


mobilization on 31 January 2006.  Due to fulfilling almost double her contractual agreement, she is asking to have her contract administratively corrected from a 3x5 with no benefits to a 6x2 with all benefits available at that time.  She felt the extra time spent was at no fault of her own.

12.  The HRO contacted the USARC, G1 and was informed that the applicant may have a good case for this Board.  G1 advised the applicant to apply to this Board for correction to her contract from 3 to 6 years and an authorization for all bonuses and incentives that were available to her at the time of her enlistment.  G1 stated that the applicant was eligible to reenlist for incentives at this time, if she desired to pursue having this contract corrected to reflect a term of 6 years; she should not re-enlist until this matter is resolved.  If the contract is corrected, depending on when it is corrected, she may or may not be eligible to reenlist for incentives, as her MOS may or may not be on the SRIP (Selective Reserve Incentive Program) by then.   

13.  On 19 June 2007, the Acting Director, AMEDD (Army Medical Department) Region, US Army Human Resources Command (AHRC) St. Louis, prepared a memorandum for the Army Review Boards Agency (ARBA) Support Division. St. Louis.  AHRC responded to the inquiry regarding the applicant’s request for correction of her term of enlistment from 3x5 with no benefits to a 6x2 with all benefits available at that time.  She completed her 3 year contractual agreement on 16 May 2003 and was alerted for mobilization on 20 January 2005.  She was released from mobilization on 31 January 2006.  She can reenlist or extend at any time for a TPU and she will be eligible at that point for a bonus, MGIB, ACF, and LRP if applicable at that time.

14.  The applicant’s ARPC Form 249-2-E (Chronological Statement of Retirement Points) shows the following:

Beg 		Ending 	Inactive 	Mem		Active  Qual		Total
Date		Date		Duty 		Points		Duty 	 for		Points					Points				Points	 Ret		Cred

20060518	20070517	35		15		   9	   1		  59
20050518	20060517	  4		15		259	   1		278
20040518	20050517	10		15		  10	   0		  35
20030518	20040517	23		15		  24	   1		  62
20020518	20030517	37		15		  00	   1		  52
20010518	20020517	53		15		  14        1		  82
20000518	20010517	20		15		173	   1		208
20000517	20000517	  0		  0		    0	   0		    0	
15.  Army Regulation 601-210 sets forth the basic authority for Regular Army and Army Reserve Enlistment Program.  Section II covers Enlistment Period and Pay Grades.  Paragraph 2-18 pertains to authorized enlistment periods.  It states that NPS (non prior service) applicants enlisting in the USAR incur an 8 year statutory MSO (Military Service Obligation).  Enlistment in the USAR will be for a period of 8 years.  The applicant may select the period of time to be assigned to a TPU of the Selected Reserve as authorized by Chapter 5.

16.  Section XVIII, of the same regulation, covers USAR initial training requirements and terms of service.  Paragraph 5-68 pertains to terms of service. It states that NPS applicants incur an 8 year statutory MSO or 8 year contractual obligation on initial enlistment.  Applicants may choose the following options in fulfilling the 8 year service obligation such as:  (1) 6x2 option.  This option provides that the applicant will remain assigned to a TPU of the Selected Reserve for a period of 6 years and will be transferred to the USAR Control Group (AT) for the remaining 2 years; and (2) 3x5 option.  The option provides that the applicant will remain assigned to a TPU of the Selected Reserve for a period of 3 years and will be transferred to the USAR Control Group (AT) for the remaining 5 years.  At the end of the period of service in a TPU, a member may elect to remain assigned to the unit and not be transferred to the Control Group. 

17.  MILPER Message Number 03-041 approved establishment of the RC (Reserve Component) Unit Stop Loss Procedures for the Army Reserve.  A RC unit is defined, for the purpose of this policy, as an organization/individual ordered to active duty UP (under the provisions) of Title 10, United States Code (USC), 12302 (Partial Mobilization) and Title 10, USC 12304 (Presidential Selected Reserve Call Up), identified on those orders by a unit identification code (UIC), or a derivative unit UIC (DUIC).  The rules determining the conditions under which a Soldier subject to Stop Loss may be Retired, Separated, or Released from Active Duty (REFRAD) are not altered under RC unit Stop Loss.  RC Unit Stop Loss is simply an additional triggering mechanism to determine whether a Solder is subject to Stop Loss.  This policy complements and, in some cases overlaps with, Stop Loss, which is a Skill Based Stop Policy.

18.  This message does not prevent or delay the routine, scheduled REFRAD of Ready Reserve Soldiers serving on active duty for training (ADT), Annual Training (AT), Active Duty for Special Work (ADSW), Active Guard Reserve (AGR) duty (UP Title 10 for Soldiers assigned to non-alerted/mobilized units), temporary tours of active duty (TTAD), or those Ready Reserve Soldiers serving on extended active duty (EAD) UP, of Title 10 12301.  Furthermore this message does not prevent or delay the routine, scheduled REFRAD of Soldiers mobilized UP 10, USC 12303 or 12304 consistent with policy and statutory time limits for such mobilization.

19.  Title 10, USC, Section 12302, pertains to partial mobilization declared by the President.  It states that in time of national emergency no more than 1,000,000 are called up (total force) and for no more than 24 months.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant enlisted in the USAR for 8 years, in Mechanicsburg, PA, with a contractual obligation to serve 3 years in a TPU 
and 5 years in the IRR.  There is no evidence that on the anniversary of her 
third year of enlistment and at the end of her TPU contractual obligation, that 
she was transferred to the IRR as required by her specific enlistment contract.
In fact she continued to serve in her TPU as her ARFC Form 249-2 shows she earned 23 inactive duty points and 24 active duty points during her RYE ending 14 May 2004.  Moreover, during her next RYE ending on 14 May 2005 she earned 10 inactive duty points and 10 active duty points. 

2.  The applicant was reassigned to the 3/360th Regimental Combat Support/  Combat Service Support unit within the 91st Division (Training Support USAR) geographical area of responsibility on 20 January 2005.  There is no justification for the TPU transfer provided on her transfer order.  On 21 April 2005, she received mobilization orders ordering her to active duty on 8 May 2005.  She was mobilized per policy guidance, RC Stop Loss, under MILPER Message Number 03-401.  She was informed that the Stop Loss Policy was in effect due to a partial mobilization declared by the President.  She completed her mobilization period honorably and was released from active duty on 21 January 2006 and returned to her TPU where records show she is actively attending her inactive duty training assemblies.

3.  The applicant contends that her enlistment contract, dated 17 May 2000, has not been fulfilled by the USAR as she was not released from her unit upon completion of her 3-year TPU enlistment period and transferred to the IRR as her contract stipulates.  Records show she continued to perform her inactive and active duty periods during the period 18 May 2003 through her mobilization on 8 May 2005.  Her enlistment contract clearly stipulated that she could be ordered to active duty under conditions authorized by the law in effect during her entire enlistment contract. 

4.  The applicant continued to serve in her TPU in Harrisburg (PA), was transferred for an unknown reason to a unit in Utah, and then ordered to active duty under the partial mobilization law, under Title 10, USC, Section 12303.  She has not shown that an error occurred during her contractual service agreement.

5.  In view of the circumstances in this case, the applicant is not entitled to a change of her term of service option to show a 6 year active Reserve service obligation with all incentives available to her, at the time of her enlistment.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request and has not shown error, injustice, or inequity for the relief, she now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JP____  ___WDP_  __DWS _  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.




____William D. Powers______
          CHAIRPERSON




INDEX

CASE ID
AR20070007709
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080110
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR USAR-DRILLING
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
135
2.

3.

4.

5.

6.