IN THE CASE OF:
BOARD DATE: 22 July 2010
DOCKET NUMBER: AR20090014440
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 change of the reason for his release from his U.S. Army Reserve (USAR) unit from unsatisfactory performance to a more favorable reason so he may enlist in the Regular Army (RA).
2. The applicant states when he joined the USAR, he attended drill but he was then transferred with his employer out of state to Georgia and he was told there wasn't a Reserve unit with the same military occupational specialty (MOS). He was told he would be transferred back to the Individual Ready Reserve (IRR) for the remainder of his contract.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 May 1999.
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 applicants 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 applicants 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 enlisted in the RA on 3 May 1996 and he held MOS 19D (Cavalry Scout). The highest rank/grade he attained during his military service was specialist (SPC)/E-4.
3. He was honorably released from active duty on 2 May 1999 by reason of completion of required active service and he was initially assigned to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation. However, shortly prior to his release, his orders were amended to show his assignment to the 12th Legal Service Team 3, Greensboro, NC, a troop program unit (TPU).
4. The facts and circumstances surrounding his discharge from the USAR are not available for review with this case. However, his records contain a copy of Orders 070-75L, issued by Headquarters, 81st Regional Support Command, Birmingham, AL, dated 10 March 2000, that show he was released from the
12th Legal Service Team 3 and reassigned to the USAR Control Group (Annual Training) in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, or Transfers), paragraph 4-18, by reason of unsatisfactory performance.
5. His current ARPC Form 249-E (Chronological Statement of Retirement Points) does not reflect participation in any unit drills since his release from active duty on 2 May 1999.
6. Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. Paragraph 418 of this regulation provides for the involuntary reassignment for failing to report to a TPU or individual mobilization augmentee (IMA) assignment [No Show]. It states that the responsible authority will reassign a Soldier from a TPU or IMA assignment to the appropriate IRR control group when the Soldier fails to report and cannot be located within 90 days after the date of release from Active Army status; or reassignment from the IRR; or reassignment from another TPU or IMA assignment.
DISCUSSION AND CONCLUSIONS:
1. The applicants record is void of the facts and circumstances that led to his discharge. However, his record contains a properly-issued order, published by an appropriate authority, directing his release from his TPU to the USAR Control Group (IRR) for unsatisfactory performance.
2. It appears the applicant failed to report to his unit of assignment and could not be located within 90 days after the date of release from active duty or reassignment from the IRR. Accordingly, he was appropriately released for unsatisfactory performance. In the absence of evidence to the contrary, it is presumed that all requirements of the governing regulation were met and the rights of the applicant were fully protected. He has provided no evidence that would indicate the contrary.
3. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. 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. He did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence to grant the applicant the requested 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) AR20090014440
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