IN THE CASE OF:	  

		BOARD DATE:	        13 January 2009

		DOCKET NUMBER:  AR20080016747 


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 an exception to policy to allow his reenlistment as a 79S (Retention Noncommissioned Officer (NCO)).

2.  The applicant states that his reenlistment in the Active Guard Reserve (AGR) of the U.S. Army Reserve (USAR) was denied because he was late in turning in the request for reenlistment.  He adds that although he stated the reason for lateness on his request for an exception and his immediate commander recommended approval, his battalion and brigade commanders recommended disapproval without any explanation.  His request was ultimately disapproved by the U.S. Army Human Resources Command (HRC)-St. Louis, Missouri.  This decision left him and his disabled wife unprepared for this immediate unemployment.  He also states that he has a very good military record with no history of adverse actions, nonjudicial punishment, suspension of favorable personnel actions, bars, illegal or immoral behavior, or anything negative.  He concludes that he spoke with a retention area leader about switching his military occupational specialty (MOS) from 31B (Military Police) to 79S and was told there would be a slot for him as a retention NCO.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  DA Form 4187 (Personnel Action), dated 8 January 2008, with the immediate, battalion, and brigade commanders’ recommendations;

	b.  electronic mail (email) exchange, dated on miscellaneous dates in January 2008, regarding his exception to policy request;

	c.  copy of HRC-St. Louis Orders R-03-682282, dated 28 March 2006;

	d.  DA Form 2166-8 (NCO Evaluation Report) for the period 1 September 2006 to 31 March 2007;

	e.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 February 2008; and

	f.  copies of his two letters, dated 3 February 2008 and 7 July 2008, to his Congressman.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 15 September 1953 and initially enlisted in the Regular Army for a period of 4 years on 22 December 1975.  He completed basic combat and advanced individual training and was awarded MOS 75B (Personnel Administration Specialist).  He attained the rank/grade of sergeant/E-5.  He was honorably separated and transferred to the USAR Control Group (Standby Reserve) on 11 December 1979.

2.  The applicant’s records further show he enlisted in the USAR for a period of 4 years as a cadet on 19 February 1980.  He was subsequently discharged from the USAR on 9 June 1981 and was appointed as a second lieutenant in the Quartermaster Corps (QM) of the USAR and executed an oath of office on 10 June 1981.

3.  On 3 January 1982, the applicant entered active duty and attended the QM Officer Basic Course.  However, he was honorably released from active duty to the control of the USAR on 28 May 1982.

4.  The applicant’s records also show he enlisted in the USAR for a period of 2 years on 23 September 1993.  He subsequently executed a series of extensions and/or reenlistments in the USAR.

5.  On 21 April 1996, the applicant completed Phase I of the USAR Military Police Course and, on 16 August 1996, he completed Phase II of that course.  Orders awarding his MOS 31B are not available for review with this case.

6.  On 17 May 1999, the applicant was ordered to active duty in an AGR status for a period of 3 years and was assigned to the U.S. Army Recruiting Battalion (USARB), Tampa, Florida.  He subsequently completed the Army Recruiter Course and performed duties in MOS 79R (Recruiter NCO) as a USAR recruiter at the USARB-Tampa.  He was also promoted to staff sergeant/E-6 on 1 September 2000.

7.  On 1 November 2003, the applicant was reassigned in an AGR status to the 88th Military Police Company, Fort Eustis, Virginia.  He was promoted to sergeant first class/E-7 on 1 October 2004 in MOS 31B and incurred a 2-year AGR service obligation with this promotion.

8.  On 1 November 2004, the applicant was reassigned to the 2nd Battalion, 318th Military Police Regiment, Fort Eustis, Virginia.

9.  On 13 July 2006, HRC-St. Louis issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the applicant that he had completed the required years of qualifying Reserve service and is eligible for retired pay on application at age 60.

10.  On 28 August 2006, the applicant was reassigned to Headquarters and Headquarters Detachment, 317th Military Police Battalion, Tampa, Florida, as the Detachment Sergeant.

11.  The applicant's last reenlistment contract is not available for review with this case; however, his records indicate that his expiration term of service (ETS) date was 7 February 2008.  Accordingly, on 22 August 2007, by email, the applicant's HRC-St. Louis personnel manager notified the applicant of the following:

This is an official notification.  Our records currently indicate that you are scheduled to ETS (expiration of term of service) within the next 
6-12 months.  If you intend to reenlist, please submit your request through your chain of command as soon as possible.  Contact your major command Retention NCO for guidance in filling and processing this action.  If you have time remaining on your current contract, you may submit a request for REFRAD (release from active duty) Alignment.  If you elect to separate and ETS, please submit your request for REFRAD upon ETS as soon as possible.  You may disregard this notification if you already submitted your request.

12.  On 8 January 2008, the applicant submitted a DA Form 4187 requesting an exception to policy for reenlistment and continuation in the AGR program for an indefinite period of time.  He cited his demanding workload, mother-in-law’s hospitalization, and domestic family issues as the reasons for his delay in submitting his request.
13.  On 8 January 2008, the applicant’s immediate commander recommended approval of the applicant’s request and remarked that the applicant was a dedicated NCO who puts the mission and Soldiers first.  He also added that despite the unit’s numerous requirements, the applicant’s selfless service and dedication significantly contributed to the success of the mission.

14.  On 22 January 2008, by memorandum, the applicant’s battalion commander indicated that he neither concurs nor recommends the applicant for immediate reenlistment in the AGR program.

15.  On 15 February 2008, the applicant’s garrison commander recommended disapproval of the applicant’s request.

16.  On 15 February 2008, HRC-St. Louis published Orders C-02-890147 ordering the applicant’s release from active duty effective 7 February 2008 (later amended to show 5 February 2008) and reassignment to the USAR Control Group (Reinforcement).

17.  On 15 February 2008, HRC-St. Louis further published Orders C-02-802940 releasing the applicant from the USAR Control Group (Reinforcement) and assigning him to the Retired Reserve effective 7 February 2008.

18.  In an exchange of email messages between the applicant, the applicant's commander, and his HRC-St. Louis personnel manager, the personnel manager questions the recommendation to disapprove the applicant's request for reenlistment, to which the commander states that he disapproved the exception to policy to reenlist in the AGR program and, as a commander, he is not required by regulation to state his reasons.

19.  Army Regulation 140-111 (USAR Reenlistment Program) prescribes the policies, responsibilities, and procedures for USAR reenlistment.  Chapter 8 of this regulation governs the AGR program.  The AGR program provides a highly qualified corps of personnel for USAR projects and programs.  These personnel are serving on active duty (AD) in an AGR status.  They are Selected Reserve Soldiers assigned to USAR Control Group (AGR) and attached to either Active Army or USAR commands.

20.  Paragraph 8-16 of Army Regulation 140-111 governs eligibility of USAR Soldiers on AD.  It states, in pertinent part, that the reenlistment eligibility window for AGR enlisted Soldiers is no earlier than 12 months, and no later than 3 months, prior to the ETS.  Reenlistments are not authorized when Soldiers are less than 3 months from ETS without prior approval from the Commanding General, HRC-St. Louis.  When a Soldier serving on AGR status is within no earlier than 15 months, and no later than 3 months, prior to ETS and desires to continue on AGR status, the Soldier will submit a DA Form 4187 through normal command channels to the Personnel Service Activity, indicating his or her reenlistment intentions.

21.  Paragraph 8-17 of Army Regulation 140-111 governs procedures for continued membership in the USAR after REFRAD.  It states, in pertinent part, that if a Soldier is not reenlisted or extended in the USAR before REFRAD, the Soldier will be discharged at REFRAD.  This could cause a break in continuous military service.  Therefore, an eligible Soldier must be offered the opportunity for continued USAR service upon REFRAD.  Such USAR service can be as an assigned Individual Ready Reserve or Troop Program Unit Soldier.  A Soldier approaching REFRAD and not processed for continuation on AD will be counseled on this matter.  Should a Soldier desire to continue USAR service, the Army Reserve career counselor will determine the Soldier’s eligibility for reenlistment and process a reenlistment within 12 months before ETS.  If the Soldier’s eligibility is in doubt, the local commander will deny the reenlistment.  If desired, the case may be submitted for review to Commander, HRC-St. Louis.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be granted an exception to policy to allow his reenlistment as a 79S.

2.  The evidence of record shows that the applicant entered the AGR program in May 1999 and performed duties in MOS 79S as a USAR recruiter.  It appears that he was extended in the AGR program and was reassigned to a Military Police unit in November 2003 in MOS 31B.  It also appears that his separation date from the USAR was 5 February 2008.

3.  The evidence of record further shows that the applicant was notified of his upcoming ETS date and the requirement to take action; however, he failed to do so within the time prescribed by the governing regulation.  He waited until he was within 30 days of his ETS date to request an exception to policy to reenlist and remain in the AGR program.  His request was disapproved.  There is no provision in the regulation for his commander to justify his decision.

4.  Implicit in the Army's personnel management system is the universally accepted and frequently discussed principle that senior NCOs have a responsibility for their own careers.  It is further noted that, as a senior NCO, the applicant knew or should have known of the requirement to submit his reenlistment request not earlier than 12 months and not later than 3 months prior to his ETS.
5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief. 

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.


															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)                                         AR20080016747



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ABCMR Record of Proceedings (cont)                                         AR20080016747



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