IN THE CASE OF:	  

		BOARD DATE:	         22 September 2009

		DOCKET NUMBER:  AR20090007809 


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 promotion to staff sergeant (SSG)/E-6 with a full military retirement; award of the $1.5 million monetary compensation/loss for pain and suffering; reimbursement of $15,000 attorney fees; and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a discharge date as the date the requested relief is completed.   He also requests a personal appearance before the Board.

2.  The applicant states that he was a member of the Individual Ready Reserve (IRR) and he should have been discharged from the U.S. Army Reserve (USAR) in 2001 when his Reserve obligation was completed.  He was ordered to active duty in February 2003 in the rank/grade of specialist (SPC)/E-4 and subsequently deployed to Kuwait despite not having any military obligation.  Meanwhile, other lower enlisted Soldiers in his units were promoted to higher grades while he could not be promoted as he was working outside his military occupational specialty (MOS).  Additionally, when he was ordered to active duty, he was receiving disability compensation from the Department of Veteran Affairs (DVA).  However, once activated, his compensation stopped and some of the money was recouped by the DVA.  In June 2003, his command learned that he was not serving under an enlistment contract and within a few days, he was sent home.  He reported to Fort Stewart, GA, in July 2003 and explained his situation but he was told to go home.  He made several contacts with Fort Stewart to fix the problem but he was not released from active duty.  He continued to receive active duty pay until January 2004; however, the Defense Finance and Accounting Service (DFAS) recouped the money for the period from July 2003 to 
January 2004.  Additionally, he was unable to resume his civilian job as he had not been released from active duty.  This caused further financial difficulties to him and his family.  He was ultimately released from active duty and he was issued a DD Form 214 on 15 August 2004 which also allowed him to resume his civilian job shortly after.  The U.S. Army Human Resources Command (USAHRC) ultimately authorized an antedated enlistment contract covering his military service and terminating on 7 November 2005. 

3.  The applicant provides copies of over 150 miscellaneous military and/or civilian personnel, finance, legal, medical, correspondence, letters, emails, and other related documents, dated on miscellaneous dates, in support of his request. 

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 records show he was born on 3 June 1974 and he enlisted in the Florida Army National Guard (FLARNG) on 16 July 1991.  He subsequently entered active duty for training (ADT) on 16 June 1992, completed basic combat and advanced individual training, and he was awarded MOS 12B (Combat Engineer).  He was honorably released from ADT to the control of his ARNG unit on 24 September 1992 in the rank/grade of private (PV1)/E-1.  

3.  The applicant’s records also show he was discharged from the ARNG as an unsatisfactory participant on 11 May 1994.  He was credited with 3 months and 9 days of active service and 2 years, 9 months, and 26 days of inactive service.

4.  The applicant’s records further show he enlisted in the Regular Army (RA) in the rank/grade of private first class (PFC)/E-3 for a period of 3 years on 1 May 1996 and he was subsequently assigned to the 84th Engineer Battalion, Fort Polk, LA.  He was honorably discharged in the rank/grade of specialist (SPC)/E-4 on 30 April 1999 by reason of completion of his required active service.  He was credited with 3 years of active service.

5.  Prior to his discharge from the RA, the applicant executed a 1-year enlistment in the USAR in the rank/grade of SPC/E-4 on 8 March 1999.  He also executed a 12-month extension in the USAR on 8 March 2000, thus establishing his new expiration of term of service (ETS) date as 8 March 2001. 

6.  On 16 October 2000, Headquarters, 81st Regional Readiness Command (RRC), Birmingham, AL, published Orders 290-21L directing the applicant’s reassignment from his Troop Program Unit (TPU) to the USAR Control Group (Reinforcement) for unsatisfactory participation. 

7.  On 23 January 2003, the applicant submitted a DA Form 4187 (Personnel Action) through the 81st RRC, Birmingham, to the Commander, U.S. Army Reserve Personnel Command (AR-PERSCOM, currently designated USAHRC - St. Louis), St. Louis, MO, requesting assignment to the 351st Military Police Company, Jacksonville, FL.  

8.  On 28 January 2003, nearly 2 years after his military obligation had terminated, AR-PERSCOM published Orders C-01-302984, reassigning the applicant from the USAR Control Group (Reinforcement) to a TPU, 351st Military Police Company, Jacksonville, for voluntary reasons.  

9.  On 14 February 2003, Headquarters, 81st RRC, Birmingham, published Orders M-045-0005 ordering the applicant to active duty in the rank/grade of SPC/E-4, as a member of his Reserve unit, the 351st Military Police Company, for a period of 365 days in support of Operation Enduring Freedom, beginning on 10 February 2003.  

10.  On or around 28 June 2003, while in Kuwait and as a result of a pay issue related to a pre-mobilization debt, it was discovered that the applicant did not have a valid enlistment contract in the USAR.  He was accordingly directed to return back to the United States on or around 29 June 2003.

11.  On 14 July 2004, Headquarters, 81st RRC, Birmingham, published Orders 04-196-00086, directing the applicant’s honorable discharge from the USAR, effective 14 July 2004. 

12.  On 15 August 2004, the applicant was issued a DD Form 214 that covered an active duty period of 1 year, 6 months, and 6 days, from 10 February 2003 (the date he was ordered to active duty) to 15 August 2004 (the date of his release from active duty).  This form shows the following entries:
	a.  Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) show the entries SPC and E-4; 

	b.  Item 12d (Total Prior Active Service) shows the entry “0003  03  09”; and

	c.  Item 12e (Total Prior Inactive Service) shows the entry “0008  00  07.” 

13.  On 30 November 2004, Headquarters, 81st RRC, Birmingham, published Orders 04-335-00004, revoking Orders 04-196-00086, issued by the same Headquarters on 14 July 2004, and pertaining to the applicant’s discharge from the USAR.

14.  On 8 July 2005, by memorandum to the USAHRC - St. Louis, the Deputy Chief of Staff, G1, 81st RRC, Birmingham, requested approval to issue the applicant an antedated reenlistment contract for the purpose of releasing the applicant from active duty properly and discharging him from the USAR appropriately.  

15.  On 27 July 2005, USAHRC - St. Louis, granted the 81st RRC, Birmingham, approval to issue the applicant an antedated reenlistment contract, effective
9 March 2001 (one day after the date he should have been discharged), in accordance with paragraph 5-15 of Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program).  

16.  On 19 September 2005, the applicant executed an antedated 3-year reenlistment in the USAR in the rank/grade of SPC/E-4, to be effective 9 March 2001. 

17.  On 22 September 2005, Headquarters, Fort Stewart, GA, published Orders 265-0004, directing the applicant’s release from active duty effective 15 August 2004, and transfer to the 351st Military Police Company, Jacksonville.    

18.  On 10 October 2005, Headquarters, 81st RRC, Birmingham, published Orders 05-283-00001L, amending the period of active duty indicated in Orders M-045-0005, dated 14 February 2003, from 365 days to 552 days.

19.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  It pertinent part it states that the DD Form 214 is a synopsis of the soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
20.  Army Regulation 600-8-19 prescribes the policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 3 of this regulation provides for managing semi-centralized boards and governs the sergeant (SGT) and SSG promotion system for Active Army and USAR AGR Soldiers.  It states that field-grade commanders in units authorized a commander in the grade of lieutenant colonel (LTC) or higher have promotion authority to the grades of SGT and SSG; however, the promotion branch at the servicing personnel center maintains the recommended list and issues the orders.  An RRC, Army Command (ACOM), Army Service Component Command (ASCC), or Direct Reporting Unit (DRU) will issue promotion orders for USAR Soldiers.  Promotions to SGT and SSG are executed in a semi-centralized manner.  Field operations will handle board appearance, promotion point calculation, promotion list maintenance, and the final execution of the promotion, occurs in the field in a decentralized manner.  Headquarters, Department of the Army (HQDA) operations will handle promotion cutoff scores and the monthly SGT/SSG promotion selection by-name list, which are determined and announced monthly.  HQDA and HRC–St. Louis will determine the needs of the Army by grade and MOS.  Promotion to SGT and SSG is announced in permanent orders. 

21.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, ARNGUS, and USAR).  It states, in pertinent part, that a Soldier who has completed 20 but less than 30 years of active federal service (AFS) in the U.S. Armed Forces may be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.  

22.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in a Reserve Component was later amended to the last 6 years, and on 26 April 2005, was reduced to zero (0) years.

23.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Chapter 7 of this regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  In particular, 
paragraph 7-3.1 states that an officer (other than a commissioned warrant officer) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer (other than a commissioned warrant officer) or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date will be removed from active status.

24.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

24.  Army Regulation 15-185, chapter 3, states that the Army, by law, may pay claims for amounts due to applicants as a result of correction of military records.  The Army may not pay any claim previously compensated by Congress through enactment of a private law.  The Army may not pay for any benefit to which the applicant might later become entitled under the laws and regulations managed by the Department of Veterans Affairs.  The ABCMR will furnish DFAS copies of decisions potentially affecting monetary entitlement or benefits.  DFAS will treat such decisions as claims for payment by or on behalf of the applicant.  DFAS will settle claims on the basis of the corrected military record.  DFAS will compute the amount due, if any.  DFAS may require applicants to furnish additional information to establish their status as proper parties to the claim and to aid in deciding amounts due.  Earnings received from civilian employment during any period for which active duty pay and allowances are payable will be deducted.  The applicant’s acceptance of a settlement fully satisfies the claim concerned.  The Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under Title 10, U.S. Code, section 1552.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to SSG/E-6 with a full military retirement; awarded $1.5 million monetary compensation/loss for pain and suffering; reimbursed $15,000 attorney fees; have his DD Form 214 corrected to show a discharge date as the date the requested relief is completed; and he requested to personally appear before this Board. 
2.  With respect to the issue of a personal appearance, the applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  With respect to payment of monetary benefits, the ABCMR corrects records; it does not pay applicants except where, if in the process of correcting a record an applicant is determined to be entitled to certain monetary compensation, the ABCMR will furnish DFAS copies of decisions potentially affecting monetary entitlement or benefits.  DFAS will treat such decisions as claims for payment by or on behalf of the applicant; compute the amount due, if any; and settle claims on the basis of the corrected military record.  

4.  With respect to attorney fees, by law and regulation, the Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records.

5.  With respect to the applicant's promotion to SSG/E-6, the evidence of record shows the highest rank/grade he attained during his military service was SPC/
E-4.  He was ordered to active duty in February 2003 as an SPC/E-4 and he was released from active duty in August 2004 as an SPC/E-4.  There is no evidence in the applicant's records and he did not provide any substantiating evidence that shows he was recommended for promotion to SGT or SSG, appeared before the SGT or SSG promotion board, met the cut-off scores for SGT or SSG, or issued orders promoting him to SGT or SSG. 

6.  With respect to the applicant's regular retirement, the evidence of record shows the applicant completed 1 year, 6 months, and 9 days of active service upon his release from active duty in 2004 and had 3 year, 3 months, and 9 days of prior active service for a total of 4 years, 9 months, and 18 days of active service.  He would need a little over 15 more years of active service to qualify for regular retirement from the Army.  There is no evidence in his records and he did not provide any substantiating evidence that shows he completed the required 20 years of AFS to qualify for retirement. 

7.  With respect to the applicant's non-regular retirement, in order to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have attained age 60, completed a minimum of 
20 years of qualifying service, and served the last 6 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 6 years in a RC was reduced to zero (0) years on 26 April 2005.  There is no indication that the applicant has completed 20 year of Reserve service or that he was issued a 20-year letter or that he has reached age 60.  Therefore, he does not meet the criteria for a non-regular retirement. 

8.  With respect to extending the applicant's discharge date on his DD Form 214, the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The applicant's original period of active duty was 365 days, but he was later extended to 552 days to resolve the administrative errors in his mobilization/demobilization.  He was discharged on 15 August 2004 and he was issued a DD Form 214 to capture his period of active service.  There is no evidence that he performed any subsequent period of active service that would warrant changing the discharge date shown on his DD Form 214.

9.  With respect to any financial hardship, while the Board is sympathetic to this issue, the evidence of record shows that the applicant was issued an order to active duty, an order for his release from active duty, and a DD Form 214 to document his period of active service.  Any discrepancy related to his entitlements to active duty pay and allowances during this period of active duty should be addressed to DFAS. 

10.  It is noted that the applicant did not have entirely "clean hands" with respect to his erroneous call to active duty.  On 23 January 2003, almost two years after he should have been discharged, he initiated a DA Form 4187 requesting assignment to the 351st Military Police Company.  The call to active duty did not come until February 2003, after he initiated an action that made it appear he was still in the Army.

11.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  While there was an administrative error in his mobilization, this was corrected through the antedated reenlistment contract and the issue of a release from active duty order as well as an honorable discharge from the USAR.  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, the applicant 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.



      ___________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)                                         AR20090007809



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ABCMR Record of Proceedings (cont)                                         AR20090007809



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