IN THE CASE OF:	  

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090006305 


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 she be retired from the Army with retroactive pay and benefits and that she be issued an Army retirement identification (ID) card.

2.  The applicant states, in effect, that while she was assigned to the U.S. Army Reserve (USAR) her 9-year old daughter was sexually molested and sodomized by a member of her reserve unit.  She states that she reported the incident to her chain of command but her commander did not appropriately assist her in obtaining medical and emotional treatment for her or her daughter.  She states that after she reported the unit member to the police her unit harassed her while covering for the "perpetrator."  As a result, after unsuccessfully trying to get reassigned out of her unit, she was ultimately forced to transfer to the Individual Ready Reserve (IRR).  She further states that she attempted to reenlist in the USAR and to transfer out of the IRR to complete her military career but her old unit did not forward her "201" file to the IRR.  As a result, she states, she was unable to complete her military career as she intended.

3.  The applicant provides a self-authored letter with a table of contents for 72 included documents in support of her 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 record shows that she initially enlisted in the Regular Army on 30 October 1970.  On 10 August 1973, she was honorably separated as a result of her pregnancy.  The DD Form 214 (Report of Transfer or Discharge) she was issued showed she served 2 years, 9 months, and 12 days of active service.

3.  On 16 July 1974, the applicant again enlisted in the Army in military occupational specialty (MOS) 71L (Administrative Specialist) and was assigned to Fort Polk, Louisiana.  On 12 July 1976, she was honorably separated for dependency after having served 1 year, 11 months, and 27 days of active service.

4.  On 6 November 1976, the applicant joined the Army National Guard (ARNG) of Texas.  She was subsequently discharged on 23 February 1977 to allow her to transfer to the USAR.  

5.  The applicant's record contains a DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 23 January 1984, which shows that the applicant requested reassignment from the 491st Medical Company to the 3457th USA Medical Training Center.  Item 8 (Remarks) of the DA Form 4651-R shows the concurrence of both losing and gaining commanders with an "effective date of 17 February 1984 or prior to 10 March 1984."  Item 8 further notes that the applicant is "currently attending 91C contract school San Jacinto College, graduates in May 1984 in good standing."

6.  The applicant's record also contains Headquarters, 807th Medical Brigade Orders 14-4, dated 29 February 1984, which voluntarily reassigned the applicant from the 491st Medical Company to the 3457th USA Medical Training Center effective 17 February 1984 in MOS 91C (Practical Nurse).  However, Orders 22-16, dated 28 March 1984, revoked this reassignment.  An attached Optional Form 41 (Routing and Transmittal Slip), dated 4 April 1984 and addressed to the applicant, indicates that the orders were revoked due to her being in 91C contract school.

7.  The applicant's records contain Headquarters, 807th Medical Brigade Orders 39-13, dated 24 May 1984, which reassign the applicant to the USAR Control Group (Reinforcement) based on her request effective 25 May 1984.  The additional instructions on the order state "On or after the effective date of this assignment, address all inquiries concerning your reserve status to the Commander, United States Army Reserve Personnel Center [ARPERCEN], 9700 Page Boulevard, Saint Louis, Missouri 63132.  You must also notify that commander of any change in residence."

8.  A report from the 807th Medical Brigade Inspector General (IG), dated 28 February 1986, states that the applicant was not eligible for reassignment to two local medical units in the Houston Reserve Center because she exceeded the screening table weight of Army Regulation 600-9 and could not be reassigned to another until she was callipered.  The IG report recommends that the applicant get callipered by the 4005th United States Army Hospital and provides the name and phone number of a specific person to contact to accomplish this.  There is no evidence in the applicant's record to show that this was accomplished.

9.  The applicant provides two reports of medical examination, dated 17 July 1982 and 31 July 1986, which show the applicant's height/weight as 72"/174 and 72"/177, respectively.  At the top of the report of medical examination, dated 31 July 1986, is a hand written caption "Max Wt 169."

10.  On 23 March 1987, the Headquarters, United States Army Forces Command (FORSCOM) IG provided the applicant with information regarding possible avenues available to obtain counseling for her and her daughter.  In his letter, the IG informed the applicant that it appears the only way to obtain counseling for her daughter and herself is to apply for Designee of the Secretary of the Army status.  The letter states that there is nothing else the IG can do to assist since this is an action that must be initiated by the Soldier.  There is no evidence of record to show that the applicant submitted the appropriate documentation to obtain this status.

11.  On 16 July 1988, the applicant was honorably separated from the USAR (IRR).  Her discharge order states "Subject being discharged although assigned to this organization, is not present for duty."

12.  The applicant's record is void of, and the applicant does not provide, a Retirement Points Accounting Statement (RPAS) which would provide the total points she earned towards retirement prior to her separation.  A member of the board's staff contacted the Human Resource Command - St. Louis (HRC-STL) in an effort to obtain an RPAS but one is not included in any of the applicant's available records.

13.  The applicant's record contains an undated letter from the applicant to the Chief, Army Reserve Personnel Center, in which she requests assistance in getting her reenlistment completed before July 1988.  In her letter, the applicant states "I had been in contact with ARPERCEN (currently HRC-STL) since Feb 1988 about my desire to reenlist.  (Knowing, of course, that I could not accomplish this until at least 90 days prior to my ETS).  However I wanted to ensure that my ETS did not come without my having reenlisted and preventing a break in service."  It further states "I learned later, in August and Sept. of this year that my records person or the Reenlistment Section had sent two copies of the re-up packet to 1850 Old Spanish Trail, Houston, Tx.  As you may or may not know, that is the address of the Army Reserve Center here, obviously I wouldn't live there!"  The letter does not show the applicant's correct address but the original envelope does provide a return address which presumably belonged to the applicant and was her correct address at the time.

14.  The applicant's record contains a letter addressed to the return address provided by the applicant, dated 24 January 1989, from ARPERCEN, Special Inquiries Section which states that a reenlistment contract was mailed to the applicant's former unit on 14 July 1988.  It further states, after being notified on 
6 September 1988 that the first packet was not received, an additional packet was sent on 24 September 1988 but there is no evidence that this packet was completed or returned.  The letter concludes, "until the completed packet is received, no further action can be taken."  There is no evidence in the applicant's record to show that she complied with this requirement.

15.  Army Regulation 600-9 (The Army Weight Control Program) states that personnel whose body weight exceeded the screening table weight at Appendix A will have their body fat composition measured.  Appendix A showed a female with the height of 72 inches, between the ages of 28 to 39 years old, had a maximum allowable body weight of 169.  Section III, Paragraph 19 (Policy) specified a maximum allowable body fat standard of 32 percent for a female between the ages of 28 to 39 years of age.

16.  Army Regulation 600-9 further states that personnel exceeding percent body fat standards will be medically evaluated and will be provided weight reduction counseling.  If an individual's condition is diagnosed by medical authorities and determined to result from an underlying or associated disease, health care personnel must prescribe treatment to alleviate the condition, hospitalize individuals for necessary treatment or determine whether the individual's condition is medically disqualifying.  If health care personnel discover no underlying or associated disease process as the cause of the condition and the individual is classified as overweight, the individual will be entered into the weight control program.  Suspension of favorable personnel actions must be initiated for personnel in a weight control program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be retired from the Army and provided an Army retired ID card was carefully considered.  However, based on the available evidence, the applicant completed less than twenty years of service which is the minimum time required for retirement from the service.

2.  The applicant's record is void of an RPAS which would provide the total points the applicant earned towards retirement prior to separation from the USAR.

3.  The Board recognizes the difficulties the applicant must have faced at the time of her daughter's incident.  However, in order to correct an administrative injustice in the applicant's record, an evidentiary basis must exist that would show that the applicant attained the minimum time required for military retirement but ultimately was denied retirement.  In this case, the evidence indicates that the applicant did not complete the appropriate time for retirement and as a result the requested relief cannot be granted.

4.  The evidence of record confirms that the applicant requested to be reassigned from the 491st Medical Company to the 3457th United States Army Medical Training Center presumably because of the difficulties she described with her unit.  It further shows her request was initially approved and orders were published reassigning her in MOS 91C.  However, the orders were later revoked.  Based on an IG report included in the applicant's record, she exceeded the screening table weight of Army Regulation 600-9 and could not be reassigned to another unit until she was callipered.  Medical examination reports provided by the applicant confirm she exceeded the screening table weight before and after her reassignment request.  However, there is no evidence that her body fat composition was ever measured or that she was diagnosed with a medical condition that prevented her from meeting the weight standard.  As a result, there is an insufficient evidentiary basis to conclude the revocation of the applicant's reassignment order was inappropriate or was done to hinder the applicant from continuing her career.

5.  The applicant contends that her old unit did not forward her "201" file to the IRR and as a result she was unable to finish her military career.  The evidence of record shows that the ARPERCEN mailed two reenlistment contracts to the applicant in June and September 1988.  The applicant states that this correspondence was incorrectly sent to her old unit and therefore never received by her.  The veracity of the applicant is not in question. However, it is unclear, given the applicant had admittedly been in contact with the Reserve Personnel Center since February 1988 in regard to her reenlistment, why these documents would have been sent to her old unit presuming the applicant would have provided an updated address during her conversations with ARPERCEN officials.  As result, there is insufficient evidence to support the applicant's contention.

6.  There is no evidence of record which shows the applicant ever applied for or was denied Designee of the Secretary of the Army status as was recommended by the FORSCOM IG in its report back to the applicant.  As a result, there is no error requiring Board action.

7.  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)                                         AR20090006305



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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