BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090013422 


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, reconsideration of his request for reinstatement on active duty (AD) in the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program.

2.  The applicant states, in effect, that he is presenting new evidence and an argument that was not considered by the Board when it denied his original application.  He also states that in 1997 he applied for the USAR AGR Program and was not selected.  He further states, in effect, he was mobilized in January 2001 as a result of 9-11.  In late 2002, he again applied for the USAR AGR Program and was selected.  He was advised that he must provide a copy of his release from active duty (REFRAD) orders.  With his USAR AGR orders in hand, dated 25 June 2003, he started out-processing before leaving for the USAR AGR course.  In August 2003, he was sent to the USAR AGR course and explained to course officials that his REFRAD orders were not ready.  He received revocation of his USAR AGR orders on or about 15 August 2003.  He was advised the orders had to be revoked because he had a medical condition intentionally omitted.  On 29 September 2003, he was handed several documents to sign, including a DD Form 2648 (Preseparation Counseling Checklist) in which he had already filled in blocks 1 through 7 on 29 July 2003.  He signed the form on 29 September 2003, but attests that he did not make the entries in block 8a and block 9b.  Additionally, section III of the DD Form 2648 does not have an "X" checked to indicate acceptance or denial of further transition assistance counseling.  There is no evidence that shows he ever requested to be discharged from AD or REFRAD or resigned.

3.  The applicant also states that he cannot prove a political conspiracy or motivation to involuntarily REFRAD him based on a medical condition and there was a tremendous lack of action on the part of the command to stop the REFRAD.  He was a mobilized Soldier on AD and could have been extended on AD for more than 30 days.  He simply wants to be returned to AD (i.e. mobilized, extended AD, and/or AD for special work).

4.  In support of his request for reconsideration, the applicant provides copies of his 1998 and 2003 DD Forms 2648; his request for reconsideration for selection in the AGR, a letter from the Director, Full-Time Support Management Directorate, USAR Personnel Center; notes from a telephone call to Accessions Branch, USAR Personnel Command, a letter of release; a DA Form 4187 (Personal Action); a REFRAD memorandum; a military personnel records jacket review memorandum; four exception to policy memoranda for Army Regulation 600-110 (Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV)) and Army Regulation 135-18 (The AGR Program), and two memoranda from the DA Office of the Deputy Chief of Staff G-1.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080013758 on 12 November 2008.

2.  The applicant's military records show he was appointed in the USAR as a second lieutenant on 11 June 1986 with prior enlisted service.  He was ordered to AD for a period of 3 years and entered AD on 4 January 1987.  He was promoted to captain on 1 July 1991.

3.  On 10 January 1998, the Director, Full-Time Support Management Directorate, USAR Personnel Center, St. Louis, Missouri, advised the applicant of his non-selection for entry in the USAR AGR Program.  On 3 March 1998, the applicant requested reconsideration for selection in the USAR AGR Program.

4.  The applicant submitted a copy of a DD Form 2648 prepared and signed by him on 30 April 1998.

5.  The applicant was honorably REFRAD on 1 April 1999 based on non-selection for permanent promotion and was transferred to the USAR Control Group (Reinforcement).  He was promoted to major in the USAR on 19 July 2000.

6.  The applicant was ordered to AD in support of Operation Noble Eagle and entered AD on 28 September 2001.  There are no orders in the records showing the length of this period of AD.

7.  On 25 June 2003, the USAR Personnel Command published orders for the applicant's entry on AD in a USAR AGR status with a reporting date of 13 August 2003.

8.  The applicant also submitted a copy of a DA Form 4187, dated 14 July 2003, that shows he requested to be REFRAD to report to AD in the USAR AGR Program.  He further submitted a copy of a DD Form 2648, dated 29 July 2003, which was prepared and signed by him on the same date.

9.  The applicant was honorably REFRAD in the rank of major on 27 September 2003 at the completion of required active service.  He was transferred to a USAR unit.

10.  In a memorandum, dated 8 June 2004, the applicant requested an exception to policy based on the decision to revoke his USAR AGR orders that had already been executed.  He requested to be brought back on AD in the USAR AGR Program because his orders were revoked solely because of the positive results of the HIV test.  He also stated, in effect, the revocation of his orders was a direct result of the positive test results and that was in direct violation of the regulation.  The regulation did not say that the orders would be terminated if the results were positive.  Instead, the regulation allowed the orders to be terminated if the results (whether negative or positive) were not communicated through established medical channels to the order-issuing authority within the first 29 days.

11.  In a memorandum, dated 23 July 2004, the Chief, Individual Readiness Policy Division, Office of the Deputy Chief of Staff G-1, advised the applicant that his request for an exception to policy to Army Regulation 600-110 was denied.  The memorandum also advised that although the applicant met initial screening requirements for mobilization to AD (mobilized September 2001, tested negative for HIV in February 2002), his application to join the USAR AGR Program meant a change in his service status and would require that he meet accession standards for that program.  Paragraph 3-3a of Army Regulation 600-110 specified that all applicants for accession would be screened for HIV antibodies.  That screening would be accomplished within 6 months of the report date to AD (or in his case, the USAR AGR Entry Training (AGRET) Course) or within the first 29 days upon reporting to the AGRET Course if 6 months had elapsed from pre-accession testing.  Since the applicant started the AGRET Course on 2 August 2003, his negative HIV test in February 2002 would not suffice.  His 11 July 2003 HIV test did fall within the 6-month requirement, but it was understood he tested positive for HIV.  In accordance with paragraph 3-3e, "those confirmed to be HIV-infected would be processed for separation for failure to meet procurement medical fitness standards."  The G-1 official further stated that the USAR acted properly in removing the applicant from the USAR AGR Program.

12.  In a memorandum, dated 17 September 2004, the applicant requested waivers of Table 2-1C and Table 2-3 of Army Regulation 135-18.  He stated that based on a full examination conducted at Eisenhower Army Medical Center, Fort Gordon, Georgia, he had been found "fit for duty" on both annual fitness-for-duty evaluations.

13.  In a memorandum, dated 21 September 2004, the applicant's commander submitted his support for approval of an exception to policy of Army Regulation 135-18 on behalf of the applicant.   The commander stated that on 14 August 2003, the unexecuted portion of the applicant's USAR AGR orders were rescinded because the Army Reserve Readiness Training Center Commander determined that the applicant had not tested HIV negative within the previous 6 months, a non-waivable disqualification from entry in the USAR AGR Program. 
Since the applicant initially tested positive for HIV in August 2003, doctors at Fort Gordon, Georgia, have twice found him "fit for duty" as a result of annual fitness-for-duty examinations.  The applicant's untimely release from the USAR AGR Program was due to no fault of his own.  The USAR published his USAR AGR orders with an effective date before his HIV test results were due to be available.  Concurrent with receipt of positive HIV test results, the applicant was released from the USAR AGR Program only 13 days after reporting for duty.

14.  In a memorandum, dated 5 October 2004, the Office of the Deputy Chief of Staff G-1, advised the Commander, Human Resources Command, St. Louis, Missouri, that the applicant's request for an exception to policy of Army Regulation 135-18, Table 2-1 and Table 2-3, Rule C, was returned without action.  Although Army Regulation 135-18 requires a Soldier to test negative for HIV for entry into the USAR AGR Program, the actual policy is in Army Regulation 600-110.  Specifically, paragraph 5-2 of that regulation stated that personnel ordered to AD, to include AGR, for a period of more than 30 days must have tested for HIV antibodies with negative results within 6 months prior to the report date and prior to issuance of orders.  DOD Directive 1205.18, paragraph 4-4, stated that to assign or attach AGR personnel to designated full-time support billets in Reserve Component units and organizations, personnel should meet mobilization and deployment standards and should mobilize and deploy.  The Eisenhower Army Medical Center at Fort Gordon determined on 25 November 2003 that the applicant's current medical condition was non-deployable and precluded assignment outside the continental United States (OCONUS); therefore, DOD policy disqualified the applicant from entering the AGR Program.
15.  The applicant was promoted to lieutenant colonel in the USAR on 7 December 2006.

16.  The applicant entered AD for training on 20 October 2008 for 5 days and on 3 November 2008 and 25 November 2008 for 1 day each.  He is currently serving in the USAR and is assigned to a USAR troop program unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  The evidence shows the applicant, as a member of the USAR, was mobilized in support of Operation Noble Eagle and entered on AD on 28 September 2001.  At the time of his entry on AD in 2001, he tested negative for HIV.  In February 2002, he again tested negative for HIV.  The applicant states that in late 2002 he applied for the USAR AGR Program and was accepted.  On 25 June 2003, the USAR Personnel Command published orders for the applicant's entry on AD in the USAR AGR Program with a reporting date of 13 August 2003.  On 2 August 2003, he started the AGRET Course as part of the requirement for the USAR AGR Program.  On 14 August 2003, his HIV screen test revealed he was HIV positive.  On 15 August 2003, his USAR AGR orders were revoked in accordance with Army Regulation 600-110.  He was subsequently issued a DD Form 214 showing his REFRAD on 27 September 2003 for completion of required active service.  He was transferred to a USAR unit and is currently assigned to a USAR unit.

2.  After several requests for exceptions to policy, the applicant was advised that in accordance with Army Regulation 600-110, paragraph 3-3a, he was appropriately processed for separation from the USAR AGR Program for failure to meet procurement medical fitness standards.  He was also advised that in accordance with DOD Directive 1205.18, based on his current medical condition he was non-deployable and precluded from OCONUS assignment and, therefore, disqualified from entering the USAR AGR Program.

3.  The evidence of record does not show and the applicant has not provided sufficient evidence to show that he was unjustly or improperly removed from the USAR AGR Program and REFRAD in September of 2003.  In accordance with pertinent regulations, he was removed from the USAR AGR Program in August 2003.  There is no evidence to show he was improperly removed from the USAR AGR Program and he was clearly advised on that matter at that time.  

4.  Based on the foregoing facts, it is concluded that the applicant has not provided clear and convincing evidence and/or argument that he is entitled to be reinstated on AD in the USAR AGR Program.
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 to amend the decision of the ABCMR set forth in Docket Number AR20080013758, dated 12 November 2008.



      _____________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)                                         AR20090013422



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ABCMR Record of Proceedings (cont)                                         AR20090013422



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