BOARD DATE: 29 July 2010
DOCKET NUMBER: AR20090021882
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 correction of his DD Form 4 (Enlistment Contract) and related documents to show he enlisted in a troop program unit (TPU) for a period of 6 years and that he enlisted in the Individual Ready Reserve (IRR) for an additional 2 years.
2. The applicant states he is currently in Afghanistan and desires to reenlist while on this deployment. However, this error on his original agreement is precluding him from reenlisting.
3. The applicant provides no additional documentation in support of his 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 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. At the time of his application the applicant was serving in Afghanistan as a member of the U.S. Army Reserve (USAR).
3. On 6 April 2004, the applicant enlisted in the USAR for a period of 8 years.
4. A DA Form 4856 (Developmental Counseling Form), dated 8 December 2009, between the applicant and the Army Reserve Career Counselor, Detachment 88, 4005th US Army Hospital shows:
a. the applicant was told he would be serving 6 years in a TPU and 2 years in the IRR (a 6x2 contract);
b. the applicant's initial contract shows an 8-year obligation in a TPU;
c. the Retention Management Software (RMS) shows the applicant was to serve a 6x2 contract;
d. the applicant was counseled about reenlistment prior to deployment and he was advised he would be able to reenlist in the overseas theater; and
e. the applicant would be eligible to reenlist on or after 5 April 2009 if on a 6x2 contract.
5. The RMS printout shows the applicant entered the USAR on 6 April 2004. His TPU assignment expiration is shown as 5 April 2010. His expiration of term of service (ETS) is shown as 5 April 2012.
6. In processing this application, an advisory opinion was obtained from the Deputy Assistant Chief of Staff, G-3 (Operations), US Army Recruiting Command, Fort Knox, Kentucky. The opinion states, after a review of the applicant's enlistment records, his request for relief should be granted. The opinion further states that a person who initially enlists in the USAR must do so for a period of 8 years. There are variable terms of Selected Reserve duty and IRR commitments that may be chosen. There is absolutely no advantage for a person to elect to serve the full 8 years in the Selected Reserve. The most common option selected is the 6x2. It is believed that the counselor simply failed to select the option for which the applicant enlisted. There is no evidence that this was intentional. There would be no financial or other benefit gained by the applicant choosing the 8x0 versus 6x2 enlistment option. The applicant should be granted the relief he is seeking. The US Army Recruiting Command does not have the authority to administratively change his original agreement.
7. On 15 June 2010, the applicant responded in agreement with the advisory opinion.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 4 and related documents should be corrected to show he enlisted for a period of 6 years in a TPU and for an additional 2 years in the IRR.
2. The available evidence shows the applicant enlisted in the USAR for a period of 8 years. The RMS shows he opted to serve a period of 6 years in a TPU, which differs from the 8 years indicated in his original agreement.
3. It now appears that the applicant's original agreement is in error and should be corrected to show he enlisted with a 6x2 option.
BOARD VOTE:
___x_____ ____x____ __x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his DD Form 4 and all related documents, where appropriate, to show he enlisted in the USAR and that his obligation was 6 years in a TPU and
2 years in the IRR.
_________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) AR20090021882
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