IN THE CASE OF:	  

		BOARD DATE:	       21 August 2008

		DOCKET NUMBER:  AR20080007863 


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 her 13 August 2002 US Army Reserve (USAR) discharge be voided and that she be transferred to the Individual Ready Reserve (IRR), USAR Control Group (Reinforcement).

2.  The applicant states that she requested transfer to the IRR, but her commander discharged her instead, even though she had more than 12 years of USAR service at the time.  She has gone on to receive a B.A. and M.Ed. degrees and her return to the IRR might afford her debt repayment opportunities.

3.  The applicant provides a 29 November 2007, self-authored letter.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the USAR for 8 years on 25 July 1990.  On 10 September 1993, she transferred to the Illinois Army National Guard (ILARNG) where she served as a Petroleum Supply Specialist until discharged on 24 July 1997 and transferred back to the USAR.

3.  On 19 January 2001, the applicant voluntarily transferred from the IRR to a Troop Program Unit (TPU), the 348th Engineer Company, Cape Girardeau, MO.

4.  The applicant's record shows that, on 2 March 2002, her TPU commander notified her of initiation of separation action against her under the provisions of chapter 13, Army Regulation (AR) 135-178, by reason of unsatisfactory participation.  The commander recommended she receive a general discharge (GD), under honorable conditions.

5.  The notification was properly sent by certified mail, return receipt requested.  The notification informed the applicant of her rights and that failure to respond would be considered an abrogation of those rights.  The applicant did not respond within the required 30-day time frame.

6.  The separation packet was forwarded to the intermediate commander who, on 12 April 2002, recommended approval and separation with a GD.  The packet was forwarded to the senior commander who, on 11 July 2002, recommended approval, but with an under other than honorable conditions (UOTHC) discharge.

7.  On 9 August 2002, the approval authority determined that the applicant "does not possess any potential for useful service upon full mobilization and is therefore not eligible for the Mobilization Asset Transfer Program."  He therefore directed the applicant be separated with a characterization of service as UOTHC.  On 13 August 2002, she was discharged.  She was reduced in rank from Private First Class (PFC) to Private (PVT).

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a transfer to the IRR.  The ADRB considered her case on 21 December 2004 and voted to change the characterization of her discharge from a UOTHC to a GD.  The ADRB did not change the reason for discharge.  The applicant's request for transfer to the IRR was not addressed as being outside the purview of that board.

9.  Orders 07-213-00035, Headquarters, 89th Regional Support Command, Wichita, KS, dated 1 August 2007, revoked the applicant's 13 August 2002 discharge orders and restored her rank.


10.  Orders 07-213-00036, Headquarters, 89th Regional Support Command, Wichita, KS, dated 1 August 2007, discharged the applicant as a PFC with a GD.

11.  AR 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the US Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and US Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  It established the Mobilization Asset Transfer Program and provides, in pertinent part, for the transfer of sufficient trained manpower in the IRR of the USAR to meet the Army's personnel requirements under conditions of full mobilization.  It states that Soldiers with service characterized as UOTHC are ineligible for the Mobilization Asset Transfer Program and transfer to the IRR.  It further states that any Soldier who has been determined, by the separation authority, to possess no potential for useful service under conditions of full mobilization will not be transferred to the IRR, but will, instead, be discharged.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, that her discharge be voided and she be transferred to the IRR.

2.  The action by the ADRB to change the characterization of the applicant's discharge from UOTHC to GD cleared one obstacle to her transfer to the IRR under the Mobilization Asset Transfer Program.  However, when the applicant was separated, the approving authority, a Major General, determined that she did not possess any potential for useful service upon full mobilization and, therefore, was not eligible for the Mobilization Asset Transfer Program and transfer to the IRR.  That obstacle still remains in effect.

3.  Based upon the applicant's service record and her self-authored letter admitting that she was a less than stellar Soldier, there is no basis to change the approving authority's assessment of her potential for useful service upon full mobilization.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  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.



      __________X___________
               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)                                         AR20080007863



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ABCMR Record of Proceedings (cont)                                         AR20080007863



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