IN THE CASE OF:	  

		BOARD DATE: 	        12 November 2009 

		DOCKET NUMBER:  AR20090005265 


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, correction of his records to show additional retirement points (earned and unearned) and transfer to the Retired Reserve effective 23 July 2002.  He also requests that all documentation and databases be corrected to show his primary military occupational specialty (PMOS) as 96B and his secondary MOS (SMOS) as 27D.

2.  The applicant states that despite his active efforts at being reassigned to the 1021st Civil Affairs Group by his submission of a valid DA Form 4651-R (Request for Reserve Component Assignment or Attachment), his request was ignored without explanation and his Military Personnel Records Jacket (MPRJ) was archived without action.  He continues by stating that he was denied the opportunity for continued service through former President George W. Bush's Executive Order issued on 14 September 2001.  He states he was denied any opportunity to enter the Retired Reserve or to be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty).  He states that due to failures to act on his requests and properly administer his MPRJ once he transferred to the U.S. Army Reserve Components Personnel and Administration Center (USARCPAC) that he was denied opportunities to apply for a Uniformed Services Identification Card. 

3.  The applicant provides a DA Form 4651-R, dated 2 June 1999; Army Reserve Personnel Command (ARPC) Form 3725-E (Army Reserve Status and Address Verification), dated March 2000; copy of Senator Jack Reed's letter to BG J__ G. T_____, Jr., Office of the Chief of Legislative Liaison, dated 27 August 2001; 

copy of a local newspaper interview, dated 24 September 2001; copy of letter to Sergeant Major of the Army J___ M. T_____, dated 26 November 2001; copy of letter to Colonel D____ G. B___, Director, Personnel Actions and Services, U.S. ARPC, dated 18 April 2002; copy of letter to Sergeant Major J___ S. H___, Office of the Inspector General, dated 19 June 2002; DD Form 1172 (Application for Uniformed Services Identification Card DEERS Enrollment), dated 16 April 2003; Human Resources Command - Alexandria (AHRC) Form 249-2-E (Chronological Statement of Retirement Points), dated 15 September 2005; and a spreadsheet for the retirement points he is seeking to have awarded in support of this application.     

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's military records show he enlisted in the USAR on
15 September 1978.  He was awarded military occupational specialty (MOS) as an intelligence analyst, and was promoted to pay grade E-8.

3.  The applicant's records contain a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 14 October 1998.

4.  The applicant's records were flagged (no personnel actions to be processed) due to Army Physical Fitness Test (APFT) failure, effective 5 December 1998. 

5.  The applicant provided a copy of a DA Form 4651-R, dated 2 June 1999, requesting attachment to the 1021st Civil Affairs Group (Reserve Training Unit) ("points only" unit).

6.  The applicant's records contain a U.S. Army Reserve Personnel Command (ARPERSCOM) memorandum, subject: Nonparticipation in the U.S. Army Reserve, dated 2 February 2001.  Paragraph 1 of the memorandum states that 
an enlisted Soldier who has accrued 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the U.S. Army Reserve.  The memorandum continued by indicating that he had been identified as not earning 50 retirement points that year and if he did not remain in an active status by earning 50 retirement points each year, he had a choice of requesting transfer to the Retired Reserve or being discharged.  The memorandum recommended he consider the positive aspects of the Retired Reserve and listed several of those aspects.

7.  The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) database show his primary MOS (PMOS) as 68G patient administration specialist (formerly 71G and 91G) and his secondary MOS (SMOS) as 35F intelligence analyst (formerly 96B).

8.  A letter from the AR-PERSCOM, Enlisted Personnel Management Directorate, dated 24 April 2001, addressed to Senator Reed regarding the applicant's issues provided the information below.

	a.  The applicant had requested a "points only" unit transfer on a DA Form 4651-R received by Sergeant First Class M____.  At that time, the AR-PERSCOM database reflected the applicant as still belonging to a troop program unit (TPU).  The letter indicated his transfer from the TPU (to the Individual Ready Reserve), which would have been published by his chain of command, had not been received at the AR-PERSCOM.  The letter indicates that Sergeant First Class M____ asked the applicant to fax a copy of his transfer orders so the "points only" order could be published.  The letter indicates there was no record that the transfer order was received; therefore, a "points only" assignment order was not published.

	b.  The letter indicates that unless the applicant provided them with orders showing the requested PMOS and SMOS were his current PMOS and SMOS, they had no basis for changing his MOS' in his records. 

	c.  It also indicates that the applicant was sent the letter described in paragraph 6 above, but that he did not select an option or contact the command.  It states that the AR-PERSCOM only takes removal action when the Soldier fails to respond to the correspondence sent to them.

	d.  The last paragraph of the letter indicated AR-PERSCOM was ready to assist the applicant in any capacity that it could; however, they needed his cooperation in the submission of the required documents.

9.  Evidence indicates an ARPC Form 3725-E was provided to the applicant for review which shows his MOS as 71G.  The document has two handwritten entries indicating he wants his MOS' changed in the system to show 96B as his PMOS and 71D as his SMOS.  Instructions in Part B of the form specifies that the (Soldier/applicant) must provide copies of orders or other official documents to substantiate corrections or additions.

10.  A search of the applicant's personnel records to include his DA Form 2-1 (Personnel Qualification Record) failed to reveal any evidence that he was ever awarded or recommended for award of the patient administration specialist (71G) MOS.

11.  The applicant states in the letter to the Office of the Inspector General, dated 19 June 2002, that he must extend his enlistment for at least one more year to resolve issues he had outlined.

12.  A search of the Soldier Management System (SMS) database contains the entry, "Soldier is interested in TPU.  Master Sergeant (MSG) B_____ from 77th Regional Support Command emailed to request status check.  I informed her that the Soldier (applicant) was discharged due to non-participation and ineligible for transfer to a TPU."  This entry is dated 12 July 2002.

13.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes the policy for the flagging process of Soldiers not in good standing.  Failure to pass the APFT or failure to take the APFT within the required period is listed among the circumstances requiring a flag.  In this circumstance the flag is to be removed on the day the enlisted Soldier passes the APFT or at expiration term of service (ETS).  Flags for APFT failure block promotion, reenlistment, and extension of enlistment only. 
 
14.  There is no evidence the applicant requested transfer to the Retired Reserve. 

15.  A search of the applicant's records revealed 4th Judge Advocate General's Detachment Orders 21-2, 27 November 1985 directed award of 71D (now 27D) as his PMOS and 93B as his SMOS.  MOS 96B was withdrawn.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends that AR-PERSCOM did not act on his request for transfer to a "points only" unit, the preponderance of evidence indicates that if he would have provided AR-PERSOCM with a copy of an order transferring him 
to from a TPU to the IRR, an order transferring (attaching) him to a "points only" unit would have been published.  As such, he is not entitled to correction of his records to show he was transferred to a "points only" unit and he is not entitled to correction of his records to show retirement points for the requested period in that status.

2.  The applicant stated in the letter to the Office of the Inspector General that he felt he must extend his enlistment to correct his records.  He also contends that denial of continued service denied him the opportunity for continued service through former President George W. Bush's Executive Order issued on14 September 2001.  However, he was not eligible to reenlist or extend his enlistment beyond his expiration term of service due to his failure to successfully pass the APFT.  Since he would not have been eligible to remain in an active status beyond 23 July 2002, his contention that he was denied the opportunity for continued service is unsupported conjecture.  Therefore, there is insufficient basis for awarding him retirement points for any period of active service or for issuing him a DD Form 214.

3.  Evidence indicates the applicant failed to request a transfer to the Retired Reserve after being notified that if he did not remain in an active status by earning 50 retirement points each year, he had a choice of requesting transfer to the Retired Reserve or being discharged (for nonparticipation).  As such, there is no basis for granting his request that he be transferred to the Retired Reserve.
 
4.  Regarding the applicant's statement that he could not be processed for an identification card and thereby denied benefits; his failure to request a transfer to the Retired Reserve, which caused his discharge for nonparticipation made him ineligible for a Uniformed Services Identification Card prior to his receiving retired pay. 

5.  While there is no evidence the applicant was ever awarded the patient administration specialist MOS; there is no available evidence and the applicant has provided no evidence that his current PMOS is 96B (now 35F) or that his SMOS is 27D.  Therefore, a presumption of regularity must be applied and it would not be appropriate to correct his records to show his PMOS as 96B and his SMOS as 27D.
 	
6.  In view of the foregoing, there is no basis for granting the applicant's request.





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)                                         AR20090005265



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ABCMR Record of Proceedings (cont)                                         AR20090005265



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