IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090012604 


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 credit for active service from 1 to 22 October 2008, cancellation of his debt, payment of all pay and allowances for this period, and issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he was placed on temporary duty orders to attend the parachute riggers school at Fort Lee, Virginia, on 16 May 2008.  He also states that he volunteered to deploy with the 100th Infantry Battalion in support of the Global War on Terrorism and was issued orders on 26 June 2008.  He adds that he completed his training on 12 August 2008, was credited with 10 days of regularly scheduled training (RST) from 13 to 22 August 2008, and reported to Fort Hood, Texas, on 22 August 2008 for mobilization.

	a.  He states that his leave and earnings statement (LES), dated 15 October 2008, shows that he was not due any pay and his LES, dated 17 October 2008, shows that he owes a debt of $6,476.99.

	b.  He states that his mobilization orders were revoked on 2 October 2008, he was given a DD Form 220 (Active Duty Report) that indicates he did not complete any service, and he was told that he was not going to be paid for the period 1 to 22 October 2008 or authorized any travel pay.  He adds that he transferred back to his original U.S. Army Reserve (USAR) unit in December 2008 and has been a member of the unit since then.

	c.  He concludes by requesting pay for 10 days of RST from 13 to 22 August 2008, all pay and allowances for the period from 1 to 22 October 2008, payment of leave he accrued while in an active status, authorization to file travel claims and payment of his travel claims for the entire period of his active duty, and payment of all entitlements along with cancellation of any debt.

3.  The applicant provides, in support of his application, copies of six orders, a DA Form 1380 (Record of Individual Performance of Reserve Duty Training), a DD Form 220, two LESs, and a DA Form 4187 (Personnel Action).

CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 shows the applicant entered active duty in the U.S. Marine Corps (USMC) on 19 June 1990 and he was discharged on 2 October 1991 under other than honorable conditions based on misconduct – minor disciplinary infractions.  At the time he had completed 1 year, 3 months, and 14 days of net active service this period.

2.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and Nevada Army National Guard (ARNG) on 12 August 2002.  He was ordered to active duty for training on 14 November 2002.  Upon completion of training he was awarded military occupational specialty (MOS) 74C (Telecommunications Center Operator).

3.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the ARNGUS and Utah ARNG on 12 January 2004 and transferred to the USAR Control Group (Reinforcement), St. Louis, Missouri.  At the time he had completed 1 year, 5 months, and 1 day of net service this period.

4.  The applicant enlisted in the ARNGUS and North Carolina ARNG on 13 January 2004.

5.  A DD Form 214 shows the applicant was ordered to active duty in the Army as a member of the ARNGUS on 16 January 2004.  He was discharged from the ARNGUS on 3 November 2005 under other than honorable conditions based on a pattern of misconduct, and transferred to his North Carolina ARNG unit.  At the time he had completed 1 year, 9 months, and 18 days of net active service this period; 1 year, 8 months, and 4 days of total prior active service; and 1 year and 19 days of total prior inactive service.  This document also shows the applicant served in Iraq in support of Operation Iraqi Freedom from 3 March 2004 to 11 April 2004.  Item 6 (Reserve Obligation Termination Date) shows the entry "00000000."

6.  An NGB Form 22 shows the applicant was discharged from the North Carolina ARNG and as a Reserve of the Army on 3 November 2005 under other than honorable conditions based on acts or patterns of misconduct.  At the time he had completed 1 year, 9 months, and 21 days of net service this period.  Item 11 (Terminal Date of Reserve/Military Service Obligation) shows the entry, "2005 11 03."

7.  North Carolina ARNG, Raleigh, North Carolina, Orders 312-854, dated 8 November 2005, show the applicant was discharged from the ARNG and as a Reserve of the Army under other than honorable conditions effective 3 November 2005.

8.  U.S. Army Human Resources Command (USAHRC), St. Louis, Missouri, Orders D-01-601215, dated 17 January 2006, show the applicant was honorably discharged from the USAR effective 17 January 2006.

9.  USAHRC, St. Louis, Missouri, Orders D-01-601215R, dated 15 February 2006, revoked USAHRC Orders D-01-601215, dated 17 January 2006, pertaining to the applicant's discharge from the USAR.

10.  The applicant's military personnel records do not contain a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) series showing that the applicant was granted a waiver and/or enlisted in the USAR, ARNGUS, Regular Army (RA) or any other component of the U.S. Armed Forces.

11.  A further review of the applicant's military personnel records reveals the following documents.

	a.  USAHRC, St. Louis, Missouri, Orders C-03-606351, dated 7 March 2006, show the applicant was reassigned from the USAR Control Group (Reinforcement) to the 369th Medical Command (MC) Combat Support Hospital (CSH), Puerto Nuevo, Puerto Rico, effective 6 March 2006.

	b.  North Carolina ARNG, Raleigh, North Carolina, Orders 166-822, dated 15 June 2006, show the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 120th Combat Aviation Brigade, Wilmington, North Carolina, in duty MOS 11B1O (Sniper), effective 15 June 2006.

	c.  Headquarters, Army Reserve Medical Command, Pinellas Park, Florida, Orders 07-060-00091, dated 1 March 2007, show the applicant was reassigned from the USAR Control Group (Reinforcement) to the 369th MC CSH, Perrine, Florida, outside the command to the USAR Joint Command Support Element, Tampa, Florida, effective 1 March 2007.

	d.  Headquarters, USAR Readiness Command, Fort Jackson, South Carolina, Orders 07-264-00002, dated 21 September 2007, show the applicant was reassigned from the USAR Joint Command Support Element, Tampa, Florida, to the USAR Control Group (Reinforcement), effective 16 September 2007, based on a change in residence.

	e.  USAHRC, St. Louis, Missouri, Orders C-04-807761, dated 23 April 2008, show the applicant was reassigned from the USAR Control Group (Reinforcement) to the 421st Quartermaster Company (Airdrop Support), Fort Valley, Georgia, effective 23 April 2008.

	f.  A DD Form 220, dated 17 October 2008, shows Headquarters, III Corps and Fort Hood, Fort Hood, Texas, issued the applicant an Active Duty Report that shows the entries "NA" for authorizing orders and all effective dates.  Item 21 (Remarks) contains the entry, "Individual mobilization orders issued erroneously.  Soldier was discharged effective 03 November 2005 with a character of service of 'under other than honorable conditions' and did not have an approved waiver to reenter the military.  No DD Form 214 or discharge certificate will be furnished."  Item 19 of this document also shows that it was authenticated by the adjutant or officer representing the commander.

12.  The applicant's electronic record in the Total Army Personnel Data Base, contains a major personnel action update, dated 15 October 2008, that shows the applicant was discharged from the USAR on 3 November 2005.

13.  In support of his application, the applicant provides the following documents.

	a.  A DA Form 4187, dated 11 August 2006, that shows the applicant was awarded the Purple Heart for an injury while in support of Operation Iraqi Freedom on 9 April 2004.

	b.  Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, Order Number 097303, dated 16 May 2008, shows the applicant was ordered to active duty for training on 16 May 2008 for a period of 89 days to attend 143rd Transportation Command (TRANSCOM) training in MOS 92R at Fort Lee, Virginia.

	c.  Headquarters, 143rd TRANSCOM, Orlando, Florida, 
Orders 08-158-00001, dated 6 June 2008, show the applicant was reassigned from the 421st Quartermaster Company (Airdrop Support), Fort Valley, Georgia, outside the command to the 442nd Infantry Battalion, 100th Infantry, Honolulu, Hawaii, effective 6 June 2008.

	d.  Fort Lee Form 57, dated 12 August 2008, that shows the applicant completed the Parachute Rigger Course and was awarded the rating of Army Parachute Rigger by the Director, Airdrop and Field Services Department, U.S. Army Quartermaster Center and School, Fort Lee, Virginia.

	e.  U.S. Army Combined Arms Support Command and Fort Lee, Fort Lee, Virginia, Permanent Orders 144-00-222, dated 23 May 2008, show the applicant was awarded the Parachute Rigger Badge effective 12 August 2008.

	f.  U.S. Army Combined Arms Support Command and Fort Lee, Fort Lee, Virginia, Orders 144-00-223, dated 23 May 2008, that show the applicant was placed on parachute status and authorized parachutist pay effective 20 May 2008.

	g.  A DA Form 1380, dated 22 August 2008, shows the applicant performed warrior tasks and battle dress (WTBD) at Log Warrior from 12 to 22 August 2008.

	h.  9th Mission Support Command, Honolulu, Hawaii, Orders 08-178-00042, dated 26 June 2008, show the applicant was ordered to active duty in support of Operation Iraqi Freedom for a period of 400 days.  The orders show the applicant was to report to Headquarters, 100th Infantry Battalion, Honolulu, Hawaii, on 19 August 2008 and to report to the Reception Center, Fort Hood, Texas, on 22 August 1008.

	i.  9th Mission Support Command, Honolulu, Hawaii, Orders 08-276-00001, dated 2 October 2008, revoked 9th Mission Support Command 
Orders 08-178-00042, dated 26 June 2008, pertaining to the mobilization of the applicant.

	j.  The front page of a DD Form 220, dated 17 October 2008, shows Headquarters, III Corps and Fort Hood, Fort Hood, Texas, issued the applicant an Active Duty Report that shows the entries "NA" and "not applicable" for all of the entries related to the applicant's active duty.

	k.  Two Defense Finance and Accounting Service (DFAS) Forms 702 (Military Leave and Earnings Statement).

		(1)  The LES, dated 15 October 2008, shows the applicant had zero net amount pay due.  The Remarks section shows, in pertinent part, "ORDERS REVOKE PER ORDER #08-276-00001, 2OCT08."

		(2)  The LES, dated 17 October 2008, shows a net amount of zero.  The Remarks section shows, in pertinent part, "PAY & ALLOW DEBT (DQ03) DEBT BALANCE $3,487.85; ORIGINAL DEBT $3,487.85 19 AUG 08-30 SEP 08; BASIC PAY DEBT BALANCE $2,989.14; ORIGINAL DEBT $2,989.14,
19 AUG 08-30 SEP 08; UNPAID DEBT BALANCE 'TOTAL':  $6,476.99."

	l.  A Geneva Convention Identification Card that was issued to the applicant on 10 July 2008 with an expiration date of 30 December 2009.

14.  In connection with the processing of this case, Headquarters, III Corps and Fort Hood, Installation Management Command (IMCOM), Fort Hood, Texas, was asked to verify the applicant's status during the period of service in question.  IMCOM confirmed that the individual's mobilization orders were issued erroneously as indicated in the DD Form 220, dated 17 October 2008.  At the time, it was determined that in order for the applicant to have been qualified to deploy he would have had to have executed an enlistment contract after 3 November 2005, which would have had to have been processed through a Military Entrance Processing Station and contain a waiver by the Commanding General, U.S. Army Recruiting Command.  A copy of such an enlistment document could not be found in the applicant's military personnel records.  Accordingly, the mobilization orders were revoked and the DD Form 220, dated 17 October 2008, was issued.

15.  Army Regulation 601-201 (Active and Reserve Components Enlistment Program) applies to the RA, USAR, and ARNG.

   a.  Paragraph 1-10 (Army Reserve or Army National Guard Membership), subparagraph b, provides:

		(1)  each person who becomes a member of a U.S. Armed Force, either by enlistment, appointment, or induction, will serve in the U.S. Armed Forces for a total initial period of 8 years.  Any part of such service that is not active duty will be performed in a Reserve Component.  A person's statutory military service obligation runs concurrently with a contractual military service obligation; and

		(2)  each person who enlists or reenlists in a U.S. Armed Force executes a contractual agreement (DD Form 4) that establishes the terms of the service to be performed in that U.S. Armed Force.  The contractual agreement runs concurrently with all incurred statutory obligations.  Following termination of all statutory obligations, any subsequent military service is served according to the terms of the contract.

   b.  Paragraph 1-11 (Valid enlistment or reenlistment agreements) provides that a DD Form 4, together with appropriate annexes, is the only valid agreement that exists between the person and the Department of the Army for enlistment in the RA or USAR; or between the person and the NGB for enlistment in the ARNG.

16.  Department of Defense Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), provides in:

	a.  Chapter 1 (Basic Pay), paragraph 0101 (Creditable Service), that creditable service periods include, in pertinent part, active or inactive service in the RA, USAR, ARNG, and ARNGUS; and in

	b.  Table 1-15 (Void, Voidable, or Rejected Enlistments or Inductions – Pay and Allowances) that when an individual is under investigation for a fraudulent enlistment or induction, then pay and allowance will continue to be paid until a determination of fraud is made.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his debt to the Army should be cancelled; he should be credited for his RST service from 13 to 22 August 2008 and his active service from 1 to 22 October 2008; he should be paid all pay and allowances for this service; authorized to file travel claims and be paid for his travel claims for the entire period of his active service; and issued a DD Form 214.

2.  Records show the applicant was discharged from active duty in the ARNGUS on 3 November 2005 under other than honorable conditions based on a pattern of misconduct and transferred to his North Carolina ARNG unit.  Records also show the applicant was discharged from the North Carolina ARNG and as a Reserve of the Army on 3 November 2005 under other than honorable conditions based on acts or patterns of misconduct.  In addition, the applicant's statutory service obligation was terminated on 3 November 2005.

3.  Records show the applicant had prior enlisted service in both the USMC and ARNGUS.  Thus, it is reasonable to conclude the applicant knew that enlistment in the U.S. Armed Forces requires the execution of a valid enlistment contract.

4.  There is no evidence that the applicant was granted a waiver to reenter the ARNGUS, USAR, or RA, or that he executed a valid enlistment contract (i.e., DD Form 4) to enlist in the ARNGUS, USAR, or RA at any time after 3 November 2005.

5.  Records show that subsequent to 3 November 2005, the applicant was issued numerous orders from several different ARNG State headquarters and organizations, USAR organizations and units, and the U.S. Army.  It is not clear why or how these orders were issued.  Nonetheless, it is clear that these orders, including the mobilization orders issued on 26 June 2008, were erroneously issued and therefore invalid.

6.  Records show the applicant was issued a DD Form 220 on 17 October 2008 documenting the fact that mobilization orders were issued erroneously and that the applicant had been discharged effective 3 November 2005 with a character of service of under other than honorable conditions.  In addition, there was no evidence that the applicant had an approved waiver to reenter the military or that he had a valid enlistment contract.

7.  There is no evidence that the applicant entered into an enlistment contract with the U.S. Army.  Thus, he should not have been authorized any pay or allowances.  In addition, there is no evidence the applicant entered into a fraudulent enlistment contract.  Therefore, upon discovery that the applicant was committing fraud against the U.S. Army, appropriate action was taken by DFAS to terminate the pay and allowances that were erroneously authorized and to collect the fraudulent payments received by the applicant.

8.  In view of the fact that the applicant had no official standing in the ARNGUS, USAR, or RA during the period under review, it is not clear why he would comply with any such orders without having some willful intent to commit fraud against the U.S. Government.  Therefore, in view of all of the foregoing, the applicant is not entitled to service credit or pay and allowances for the period under review, payment for any leave or travel claims, or cancellation of any of the debt owed the U.S. Government.  In addition, he is not entitled to a DD Form 214.

9.  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)                                         AR20090012604



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ABCMR Record of Proceedings (cont)                                         AR20090012604



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