IN THE CASE OF:	

		BOARD DATE:	24 September 2009    

		DOCKET NUMBER:  AR20090003959 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his discharge date as 2 March 2007 instead of 2 December 2006.

2.  The applicant states that the DD Form 214 was processed prior to receipt of his DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) which he executed on 1 December 2006 and that the amendment to his discharge orders did not take place.  He adds that as a result of this time gap, the Defense Finance and Accounting Service (DFAS) is demanding repayment for his time served on active duty during the 3-month extension.

3.  The applicant provides a copy of the DA Form 4836, dated 1 December 2006; a copy of Orders R-10-006604A03 issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, on 7 December 2006; and a copy of the DFAS letter, dated 28 December 2007, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant's records show he enlisted in the U.S. Army Reserve (USAR) for a period of 3 years on 29 October 2000.  He held military occupational specialty 62B (Construction Equipment Repairman) and attained the rank/grade of staff sergeant/E-6 on 1 December 2003.

2.  On 5 November 2000, the applicant was ordered to active duty as a member of the USAR Active Guard Reserve (AGR) program for a period of 3 years and was subsequently assigned to the 980th Engineer Battalion, 420th Engineer Brigade, Dallas, TX.

3.  On 19 September 2003, the U.S. Army Reserve Personnel Command (now known as HRC), St. Louis, MO, published Orders R-10-006604A01 extending the applicant's AGR duty from 3 years with a release from active duty (REFRAD) date of 4 November 2003, to 5 years, 9 months, and 3 days with a REFRAD date of 7 August 2006.

4.  On 14 April 2005, HRC published Orders R-04-574284 reassigning the applicant in an AGR status to the 458th Engineer Battalion, Indiana, PA, effective 15 August 2005.

5.  On 5 October 2006, HRC published Orders R-10-006604A02 further amending the applicant's REFRAD date to 2 December 2006 under the provisions of stop loss.

6.  On 8 November 2006, HRC published two sets of orders pertaining to the applicant.  Orders D-11-690205 directed his discharge from the AGR effective 2 December 2006 and Orders C-11-635532 directed his attachment to Fort Hood, TX, effective 1 December 2006 for the purpose of separation processing.

7.  On 1 December 2006, the applicant executed a 3-month extension of his 29 October 2000 3-year enlistment in the USAR in accordance with Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program), Table 3-1, Rule T.

8.  On 2 December 2006, the applicant was honorably discharged from active duty by reason of completion of his required active service.  The DD Form 214 he was issued shows he completed 6 years and 28 days of creditable active service during this period of service. Item 12b (Separation Date This Period) shows the entry, "2006  12  02."

9.  On 7 December 2006, HRC published Orders R-10-006604A03 amending the applicant's period of active duty commitment from 3 years with a REFRAD date of 2 December 2006 to 3 years and 3 months with a REFRAD date of 2 March 2007.

10.  On 28 December 2007, DFAS notified the applicant by letter that he incurred a debt as a result of the correction to his active duty separation date from 2 March 2007 to 2 December 2006 based on his DD Form 214.

11.  An email, dated 1 July 2009, from DFAS confirmed that the applicant's debt resulted from his incorrect separation date as his extension was in the USAR not on active duty.

12.  During the processing of this application a member of the Board staff contacted HRC to determine whether the applicant complied with HRC 
Orders R-10-006604A03 extending his active duty commitment to 2 March 2007 as a result of the extension contract he executed at the transition point.  The HRC Enlisted Personnel Management Directorate Sergeant Major was able to verify that the applicant did, in fact, perform the additional 90 days of active duty. 
He was REFRAD at the termination of his extension contract on 2 March 2007.

13.  Army Regulation 140-111, Rule T of Table 3-1 (Authorized Reasons and Periods of Extensions), is used to extend a Soldier in the USAR who, through no fault of his or her own, does not meet the eligibility criteria of Table 2-1, Rule C or D.  Rule C of Table 2-1 applies when the Soldier is a current member of a USAR troop program unit (TPU) of the Selected Reserve and elects to continue USAR service by reenlistment with concurrent reassignment to the Individual Ready Reserve (IRR).  Rule D of Table 2-1 applies when the Soldier is a current member of a USAR Control Group (Annual Training, Reinforcement, Individual Mobilization Augmentee (IMA)) or the Standby Reserve (Active List) and elects to continue USAR service as an assigned member of a Control Group (Reinforcement or IMA) or the Standby Reserve.  This table does not apply to personnel serving on active duty (AD) in an AGR status.  Rule T of Table 3-1 essentially allows a Soldier in the USAR to extend for the period necessary to provide that Soldier the opportunity to meet the qualification criteria of Table 2-1, Rule C or D, but not to exceed 6 months.

13.  Chapter 8 of Army Regulation 140-111 covers the AGR administrative procedures and states that the AGR program provides a highly qualified corps of personnel for USAR projects and programs.  These personnel are serving on 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.  Paragraph 8-7 states, in pertinent part, that personnel must be released from active duty at their expiration of term of service (ETS) date if they do not meet the basic qualifications for reenlistment or cannot be extended under the provisions of Table 3-1 to meet reenlistment qualifications.

14.  Paragraph 8-9 states, in pertinent part, that the initial tour of AD in an AGR status will be for 3 years.  The AD service commitment for all subsequent AGR tours of duty will be governed by the term of service of a Soldier’s reenlistment agreement (not to exceed 6 years) or the length of the extension of the current enlistment or reenlistment agreement.  For initial entry in an AGR status, the orders will cite 3 years of AD.  For continuation in an AGR status by reenlistment, the orders will cite the number of years of AD that coincides with the term of service of the reenlistment per Table 2-7.  For continuation in an AGR status under a current enlistment or reenlistment agreement, the orders will cite the specified period of AD.  The period will be specified in days, months, or years, but will not exceed 3 years.

15.  Paragraph 8-11 states, in pertinent part, that for sound personnel management, both the ETS and REFRAD dates of AGR personnel must be the same.  Enlisted personnel maintain military status by executing an oath of enlistment for a specified term of service.  Voluntary order to AD under the directives governing the AGR program does not automatically extend an individual’s enlistment or reenlistment agreement.  Upon ETS of an enlistment agreement, a Soldier will be discharged unless the enlistment has been extended or the Soldier has reenlisted.

16.  Paragraph 8-12 states, in pertinent part, that during in-processing, the records of an individual ordered to AD in an AGR status will be examined to determine the current ETS.  If the ETS date will occur before the REFRAD date, procedures will be immediately initiated to extend the current enlistment (in accordance with Table 3-1, Rule P) to the REFRAD date.  Table 3-1, Rule P, states that when the reason for extension is a Soldier serving on active duty in an AGR status whose ETS will occur prior to the REFRAD date, the Soldier will be extended for the exact number of days, months, or years required to provide for simultaneous ETS and REFRAD dates.  If the sum required exceeds 4 years, the Soldier must be reenlisted under Table 2-7.

17.  Paragraph 8-17 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 may be as an assigned IRR or TPU Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his discharge date as 2 March 2007 instead of 2 December 2006.

2.  The evidence of record shows that the applicant entered the USAR AGR program on 5 November 2000 for a period of 3 years terminating on 4 November 2003.  His period of AD was later adjusted to 5 years, 9 months, and 3 days with a REFRAD date of 7 August 2006 and again adjusted to 6 years and 27 days with a REFRAD date of 2 December 2006.
3.  The evidence of record further shows that on 8 November 2006 HRC published two sets of orders pertaining to the applicant, the first directing his attachment to Fort Hood, TX, effective 1 December 2006 for the purpose of separation processing and the second directing his discharge from the AGR program effective 2 December 2006.

4.  On the day he was scheduled to process for separation, the applicant executed a 3-month extension in the USAR under Rule T of Table 3-1 of Army Regulation 140-111 to provide him the opportunity to meet the qualification criteria of Table 2-1, Rule C or D.  However, HRC Orders R-10-006604A03 extended his active duty commitment to 2 March 2007 as a result of the extension contract he executed at the transition point.  He returned to duty and was REFRAD at the termination of his extension contract on 2 March 2007.  Therefore, the evidence of record shows that the applicant is entitled to relief and his DD Form 214 should be amended to show he was REFRAD on 2 March 2007.

BOARD VOTE:

____x____  ____x____  _____x___  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 amending his DD Form 214 to show "2007  03  02" in item 12b.



      ____________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)                                         AR20090003959



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ABCMR Record of Proceedings (cont)                                         AR20090003959



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