BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100008444 


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, that the orders transferring him to the Retired Reserve be revoked and, as a result, his records be corrected to show that he remained assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement) Individual Ready Reserve (IRR).

2.  The applicant states he had a temporary hardship which precluded his mobilization and he expected to be granted a temporary 2-year deferral from reporting to active duty.  Instead he was discharged which terminated his Voluntary Separation Incentive (VSI) yearly payments.

3.  The applicant provides excerpts from his military records, correspondence between him and his elected Representative, and his deferral and exemption (D&E) application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 16 November 1983, was awarded the military occupational specialty of finance specialist, and was promoted to pay grade E-6.

2.  He was voluntarily discharged on 31 August 1995.  He enlisted in the USAR, IRR, with entitlement to VSI payments of $6,307.98 per year.

3.  On 22 December 2005, orders were published directing the applicant to report for active duty in support of Operation Iraqi Freedom on 29 January 2006.

4.  The U.S. Army Human Resources Command Soldier Management System contained in the applicant's interactive Personnel Electronic Records Management System (IPERMS) shows:

	a.  He submitted a D&E application after he was ordered to active duty due to his wife having cancer and not having a family care plan.

	b.  On 29 March 2006, the following entry was made:  "I informed him that if his exemption is approved he would lose his VSI benefits.  He stated he was aware of that and wish[ed] to continue his [D&E] case."

	c.  The D&E Board recommended exemption and discharge on 4 April 2006.

	d.  The applicant asked to have his discharge changed to an exemption or delay on 2 February 2009 so he could continue to receive his VSI payments.

5.  As a result of the applicant's D&E application, his active duty orders were amended on 20 January 2006, 21 March 2006, and 26 April 2006.

6.  As a result of the D&E Board's recommendation, orders were published on 24 September 2007 transferring the applicant to the Retired Reserve.  On 5 November 2007, he was honorably discharged.

7.  Army Regulation 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty), paragraph 4-2 (Availability), states:

	a.  Ready Reserve members.  All Ready Reserve members will be prepared to report for active duty (AD) within 24 hours after notification unless an exception is authorized as listed below.  Personnel must make advance arrangements to meet business, personal, and other responsibilities to ensure that they are able to meet reporting times when mobilized.  (Commanders must maintain a high level of personal readiness awareness.)  Personnel will not be delayed or excused because of civilian employment or occupation.  Exceptions are made for the following persons:

		(1)  Nonunit Army Medical Department officers participating in an educational delay program in a health or health related field.  These officers are not available during a mobilization unless specifically authorized in special instructions issued by Headquarters, Department of the Army (HQDA).

		(2)  Medical Corps officers serving in a first-year graduate medical education or internship programs.  These officers are not available for mobilization until their training is completed.

		(3)  Rescinded.

		(4)  High school attendees.  If a member is alerted for mobilization and in high school, verification of high school attendance is required from the appropriate high school official.

		(5)  Hospital personnel.  For full mobilization, see paragraph 4-3a(2) and 4-3a(3).  For partial mobilization, see section III, this chapter.

		(6)  Medical specialist registrants.  Their availability will be determined by the Director of Selective Service (Army Regulation 601-54 (Processing and Commissioning of Medical Specialist Registrants)).  Those determined available will be processed as follows:

		(a)  Registrants who have not accepted appointment (executed an oath of office).  Request for delay must be concurrently submitted to the local board and the appropriate State Director of Selective Service.

		(b)  Registrants who have accepted USAR appointments.  These personnel are under the jurisdictional control of area commanders.  Delay or exemption may be authorized only when documentary evidence substantiates that a hardship developed since the oath of office was executed.  (See paragraph 2–13d(2)(a) for other evidence required for a personal hardship request.)

	b.  Standby Reserve members.  Members of the Standby Reserve will be ordered to AD when authorized by HQDA.  A Standby Reserve member may be delayed for a reason and period shown in table 2-1, rules 36 and 37.  All other Standby Reserve members ordered to AD must report for AD within 24 hours after notified to report.  They will report for AD and be considered for separation under policies established for the active Army.

	c.  Eligibility for removal from Ready Reserve status during mobilization.  Documentary evidence must show that before the date of alert or order to AD a request for removal from the Ready Reserve was submitted.  If request was not submitted, send documentary evidence to show that there were good and sufficient reasons for not submitting the request.  The circumstances must qualify an individual for removal either by transfer to the Standby Reserve or discharge). This paragraph does not apply to unit members in a drill pay status.

8.  Army Regulation 601-25, paragraph 4-5 (Delay or Exemption), states:

	a.  During a partial mobilization, Reserve Component members may be delayed or exempted from mobilization only under conditions shown in table 2-1 (rules 31 through 37).  Depending on the circumstances and needs of the Nation and Military Service when a mobilization is authorized, HQDA may issue separate instructions authorizing delay or exemption for other reasons.

	b.  Requests for delay or exemption (under table 2-1, rules 32 and 33) from members of Army National Guard or USAR units will not be approved unless documentary evidence shows that the hardship arose since the most recent training assembly.

9.  Army Regulation 601-25, paragraph 4-6 (Period of Delay), states:

	a.  The delay period will be computed from the date on which the applicant is initially designated to report for AD and normally will not exceed 30 days.

	b.  A maximum delay of 60 days may be granted if justified by the merits of the case.

	c.  Requests for delay exceeding 60 days will not be granted unless approved by the Chief, National Guard Bureau, or the Commanding General, U.S. Army Human Resources Command, St. Louis (HRC-STL).

10.  Army Regulation 601-25, paragraph 4-7 (Application for Delay or Exemption), states that members requesting exemption must sign a request for discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was assigned to the USAR Control Group (Reinforcement) when he received his order to active duty and there is no evidence he submitted a request for discharge or transfer to the Standby Reserve prior to receiving those orders.  As such, he did not meet the criteria of Army Regulation 601-25, paragraph 4-2, for excusal or deferral from active duty.

2.  In addition, Army regulations specify that no request for delay in reporting for active duty over 60 days will be granted during partial mobilization without the approval of HRC-STL.

3.  The applicant was informed when he submitted his D&E application that if it were approved he would be discharged which would terminate his VSI payments. 
After the applicant was so informed, he replied that he was aware that he would be discharged and lose his VSI payments if his request were approved and desired that his application be processed regardless of those facts.  Since the applicant would have been required to submit a request for discharge with his D&E application, this was apparently one last opportunity provided to the applicant to withdraw his request for D&E before the D&E Board made its recommendation.

4.  As such, contrary to the applicant's contentions, he was fully aware that if his D&E application were approved he would be discharged and would lose his VSI payments.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100008444



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)