IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009875 


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 reinstatement in the U.S. Army Reserve (USAR) Control Group (Reinforcement), in effect, by correction of his records to show he reenlisted prior to the expiration of his term of service (ETS). 

2.  The applicant states he should never have been released from the USAR Control Group (Reinforcement) which resulted in the termination of his Voluntary Separation Incentive (VSI) payments.

3.  The applicant provides Orders 06-348-00083, AHRC-EP-E000 Orders C-03-606924, and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 applicant’s 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 applicant’s 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 military records show he enlisted in the Regular Army on 21 February 1989.  He completed initial entry training, was awarded the military occupational specialty of utilities equipment repairer, and was promoted to pay grade E-5.

3.  Orders 051-0027, dated 20 February 1998, show he was approved for VSI with an expiration of his VSI reserve commitment of 30 June 2022.

4.  On 23 April 1998, he executed an enlistment contract for 8 years with the USAR to establish eligibility for the VSI when he was discharged from the Regular Army.  This contract gave him an expiration of term of service (ETS) date of 22 April 2006.

5.  On 30 June 1998, he was honorably discharged from active duty and transferred to the USAR Control Group (Reinforcement) after completing 12 years, 7 months, and 19 days of active service.

6.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows he executed a 6-month extension of his enlistment resulting in an ETS date of 22 October 2006.

7.  AHRC-EP-E000 Orders C-03-606924, dated 13 March 2006, show he was voluntarily transferred from the USAR Control Group (Reinforcement) to a troop program unit effective 11 March 2006.  It further shows his ETS date at the time was 22 October 2006.  Additional instructions on the orders state the unit agreed to provide him a physical examination within 90 days of assignment.

8.  An entry in the Soldier Management System (SMS), dated 20 March 2006, shows the Human Resources Command - St Louis received an extension packet from the applicant.  It appears the purpose of this 6-month extension was to allow him additional time to take a physical examination which is a prerequisite for reenlistment.  

9.  On 14 December 2006, Orders 06-348-00083 were published honorably discharging him from the USAR, effective 13 January 2007.

10.  Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) prescribes the basic eligibility criteria for reenlistment or extension for the USAR.  Paragraph 2 states that when a Soldier's qualifications are in doubt or can not be resolved the applicant will not be processed for reenlistment.  Table 2-1 lists these criteria and whether a Soldier would be considered qualified, disqualified with waiver required, or disqualified with no waiver authorized.  This table states that a Soldier who has not had a medical examination with the timeframe of Army Regulation 40-501 (Standards of Medical Fitness) is not qualified for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  Every Soldier has a responsibility to manage his or her own career.  The applicant requests reinstatement in the USAR.  While it appears he failed to reenlist at least in part due to lack of a physical examination, he has provided no explanation for his failure to maintain his military status by getting his required physical examination and reenlisting or extending his enlistment.  This is the most basic responsibility of an enlisted Soldier.

2.  When the applicant failed to reenlist or extend his enlistment, he was properly discharged.  There is no evidence he was not afforded the opportunity to reenlist or that he was unable to do so through no fault of his own.

3.  It would be improper for the Board to use its authority as a substitute for the applicant’s lack of initiative or not meeting the prerequisites required of all other Soldiers requiring reenlistment to attain or retain benefits.

4.  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)                                         AR20100009875



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ABCMR Record of Proceedings (cont)                                         AR20100009875



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