IN THE CASE OF:	   

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20100027496 


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 reconsideration of his earlier request for reinstatement or reappointment in the U.S. Army Reserve (USAR).

2.  The applicant states the earlier decision of the Army Board for Correction of Military Records (ABCMR) was arbitrary, capricious, unsupported by substantial evidence, and contrary to law because it failed to consider all evidence.  He specifically states:

* a Troop Program Unit (TPU) position vacancy was found which he accepted on 18 September 2009
* he was coerced into resigning his commission; to say he requested resignation is misleading
* he was told his request for reappointment would be considered by a board, yet the ABCMR stated his branches (Quartermaster (QM) and Civil Affairs (CA)) disapproved his reappointment request
* there is no policy or law mandating an officer's branch must approve a reappointment application prior to action by a reappointment board
* his reappointment was denied as retaliation for his previously filed Equal Opportunity (EO) complaints
* he completed his reappointment application on 23 September 2009; the deadline was 30 September 2009
* the ABCMR denied his retaliation claim without considering the evidence he submitted
* the ABCMR denied his reappointment primarily based on the lack of a TPU position, and the rejection of the applicant by his branches
3.  The applicant continues,

The Applicant was a victim of unlawful discrimination; filed EO complaints; and continues to experience retaliation and acts of reprisal for filing EO complaints because all involved decision-makers are aware of the UNINVESTIGATED complaints.  Applicant is extremely disappointed at how the Board had arbitrarily mishandled this application.  Based on comments, considerations, discussions, and conclusions, it is very apparent the Board neglected to read the Applicant’s submitted evidence, which concisely and explicitly clarifies all the Board’s incompetent remarks.  The Board’s October 6, 2010 decision was arbitrary, capricious, unsupported by substantial evidence, and contrary to law because it failed to consider Applicant’s submitted evidence.

4.  The applicant requests the status of his case ABCMR Docket Number AR20100013423, dated 19 August 2010.  He states that the U.S. Court of Federal Claims, Washington, D.C. remanded this case back to the ABCMR to reconsider his initial request for correction of his military records.

5.  The applicant states he is submitting new evidence that will show he located a unit vacancy for reappointment in the USAR.   He provides:

* Supporting documents 1 through 13 as identified in his Request for Reconsideration in AR20100018156, dated 26 October 2010

* a memorandum from him to the U.S. Army Special Review Board, dated 14 September 2009
* an email message titled “Unit Vacancy” from Headquarters, U.S. Army Reserve Command (USARC), Retention Branch,  dated 17 September 2009
* an email message from the U.S. Army Human Resources Command (USAHRC) Reserve Appointment Branch, dated 24 September 2009
* a memorandum from the USAHRC, Reserve Appointment Branch to him, dated 28 September 2009
* a memorandum from the ABCMR addressed to him, dated 6 October 2010
* a memorandum from him to the ABCMR, dated 8 July 2010
* a memorandum from him to the ABCMR, dated 20 November 2010
* two confirmation messages from the U.S. Postal Service (USPS), dated 12 July 2010 and 23 August 2010
* an email message from him to the Army Review Boards Agency (ARBA) website, dated 19 August 2010
* a memorandum from the applicant to ARBA, dated 19 August 2010
* a memorandum from the ABCMR to him, dated 20 August 2010
* a memorandum from ARBA to him, dated 25 August 2010
* a memorandum from him to ARBA, dated 26 August 2010
* a memorandum from him to ARBA, dated 1 September 2010
* an Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 23 September 2010
* a memorandum from ARBA to him, dated 25 August 2010
* a memorandum from him to ARBA, dated 1 November 2010
* a memorandum from ARBA to him, dated 2 November 2010
* a memorandum from ARBA to him, dated 19 November 2010
* a memorandum from him to ARBA, dated 6 December 2010

* Exhibits 1 through 11 as identified in his "Supportive Documentation – 
# AR2010-0018156” EO Complaints, dated 1 November 2010

* four DA Forms 7279-R (Equal Opportunity Complaint Form), dated
15 April 2002 and 29 August 2002
* an email message from him to USARC, Human Relations and Military Equal Opportunity Programs (HRMEOP), dated 22 April 2002
* a memorandum from the Office of the Inspector General (OIG) to him, dated 31 May 2002
* a memorandum from USARC to him, dated 29 April 2002
* an email message from a chaplain at Fort Sill, OK to him, dated 1 April 2002
* an email message from a Senior Military EO Advisor, USARC, dated 9 August 2002
* an email message from the 88th Reserve Command, dated 28 August 2002
* Orders 04-015-00028, issued by Headquarters, U.S. Army Civil Affairs and Psychological Operations Command, dated 15 January 2004

* Exhibits A, B, D, E, and H as identified in his “Unlawful Discharge and Coerced Resignation – Case Number AR20100027496, dated 6 December 2010

* an email message from him to his Battalion Commander, dated 26 October 2003
* a signed affidavit from the applicant, dated 6 December 2010
* an audio compact disk (CD) of his voice mail for 2003
* an email message from him to his Battalion Commander, dated 6 November 2003
* two email messages from his Battalion Commander to him, dated 8 November 2003,
* two memoranda from him to his Battalion Commander, dated 8 November 2003
* an email message from him to his Battalion Commander, dated 10 November 2003
* a cover memorandum addressed to ARBA, dated 24 January 2011 with duplicate copies of his “Unlawful Discharge and Coerced Resignation” – Case Number AR20100027496, dated 6 December 2010 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the following previous considerations of the applicant's case by the ABCMR in:

* Case #1 – Docket Number AR20040001524 on 30 November 2004
* Case #2 – Docket Number AR20100013423 on 19 August 2010
* Case #3 – Docket Number AR20100018156 on 5 October 2010

2.  Case #1, above, essentially dealt with the applicant's request to be issued a 20-Year Letter and transferred to the Retired Reserve.  The Board denied his request.  Case #2, above, was a court remand directing the ABCMR to reconsider its decision in Case #1 after reviewing resignation correspondence between the applicant and his superior.  The Board complied and again denied the request.  These issues are not part of the current request.

3.  Case #3, above, dealt with the applicant's request for reinstatement in the USAR or, in the alternative, reappointment in the USAR retroactive to the date of his rejection (September 2009).  Both issues were denied by the ABCMR on 5 October 2010.  The applicant now presents new evidence, and makes new argument concerning issue of reappointment which requires reconsideration by the Board.  The issue of reinstatement has been considered and denied and will not be addressed further in these proceedings.

4.  After having had prior enlisted service in the Texas Army National Guard (TXARNG), the applicant was appointed a USAR commissioned officer on        11 May 1986.  He rose to the rank of major and served as a QM officer and as a CA officer.  On 8 November 2003, he submitted his resignation.  His resignation was accepted and Orders 04-015-00028, dated 15 January 2004, show he was honorably discharged from the USAR effective 1 December 2003.
5.  The applicant initiated a reappointment request in September 2010.  The following transaction history was obtained from his records in the USAHRC Soldier Management System (SMS):

* 11 September 2010 - his reappointment packet was received at USAHRC, Reserve Appointment Branch
* 11 September 2010 - his packet was missing

* a letter stating when and why he was discharged
* a unit vacancy statement (UVS)

* 14 September 2010 - applicant emailed that he will prepare a letter and contact master sergeant (MSG) C---- at USARC, Retention Branch to provide the missing documents
* 15 September 2010 - USAHRC, Reserve Appointment Branch received applicant's statement, UVS waiver request, and his request for appointment in the IRR
* 15 September 2010 – the IRR appointment request was denied by the Chief, Reserve Appointment Branch stating, “We do not appoint into IRR, must have a UVS.  Sent message to indiv[idual] and attached disapproval waiver”
* 18 September 2010 - a UVS was received from MSG C----, USARC Retention and Transition Division; packet forwarded to CA Branch for recommendation
* 25 September 2010 - his reappointment packet was returned as not recommended by both CA and QM branches and a letter was staffed to the Chief, Reserve Appointment Branch for signature
* 28 September 2010 - the reappointment was returned to the applicant; “Neither branch recommended approval.”

6.  On 6 December 2010, the applicant submitted supporting documents to the ABCMR titled “UNLAWFUL DISCHARGE AND COERCED RESIGNATION” for his request for reconsideration in Docket Number 20100018156.  The documents provided consist of his “coerced” resignation, emails to and from his former commander, a compact disc of audio recordings from his voice mail, and his EO complaint documents.  Since these matters were previously considered and also conclusively dismissed in Federal court, they will not again be reconsidered and are not relevant to this case.

7.  On 24 January 2011, the applicant submitted a follow-up letter to the Chief, Records Management Branch, indicating that he did not receive confirmation that his 6 December 2010 submission of supporting documents was received.

8.  A memorandum from the Chief, Case Management Division, ARBA, dated 17 March 2011, was mailed to the applicant explaining the following regarding his request for reconsideration of ABCMR Docket Number AR20100018156:

* his 26 October 2010 request for reconsideration was received on 2 November 2010 and assigned Docket Number AR20100028108
* his 1 November 2010 duplicate request was received on 4 November 2010 and assigned Docket Number AR20100027496
* these two docket numbers were combined under AR20100027496 and AR20100028156 was closed
* all other subsequent submissions by the applicant were linked to AR20100027496

9.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes the policies and procedures for appointment of Reserve officers.  Basic branch officer applications are processed through their units and Army Reserve Career Division (ARCD), unless they are members of the IRR or former officers or warrant officers seeking reappointment, then those applications come directly to USAHRC Officer Accessions Branch for review and staffing, to include both field boards or the special DA selection boards which are held in Fort Knox; however, at the time the applicant made application, they were sent to PERSCOM, Appointment Directorate, ATTN: TAPC–OPD–RD, 9700 Page Boulevard, St. Louis, MO 63132–5200.

10.  Army Regulation 135-100, paragraph 2-3a, provides that the commander initially receiving the application or the commander having custody of the applicant’s personnel records will:

	a.  Review application for completeness and determine applicant's administrative eligibility to apply for appointment.

	b.  Return application if applicant does not meet the basic administrative prerequisites for appointment, giving reasons for rejection.

	c.  Include the following statement, signed by the unit commander in forwarding endorsement when the application is to fill a TPU vacancy:

An actual vacancy exists in this unit for a required officer position in the grade ...., MOS/SSI...., TDA/TOE...., para...., position number.... This vacancy is advertised on the REQUEST Vacancy Control Number.... There is no officer assigned to this unit, including


overstrength or awaiting position assignment on the Unit Manning Report, qualified to fill this vacancy.  I am aware that ARPERCEN may fill this position with a qualified officer if such an officer is geographically available for assignment.

	d.  Forward applications of qualified commissioned officer applicants with appropriate recommendation, through any intermediate commanders to PERSCOM, Appointment Directorate, ATTN: TAPC-OPD-RD, 9700 Page Boulevard, St. Louis, MO 63132-5200.  For applications to fill a TPU vacancy, Continental U.S. Army (CONUSA) headquarters or USARC, as appropriate, will endorse the appointment packet directly to Army Reserve Personnel Center (ARPERCEN).  The CONUSA or USARC, as appropriate, will include in their forwarding endorsement that they have reviewed the unit UMR and confirm that no qualified officer is assigned in an over strength or pending assignment category in that unit.  ARPERCEN in their forwarding endorsement will include a statement that there are x number or no qualified officers that are geographically available to fill the vacant officer position.

11.  Army Regulation 135-100, paragraph 2-3b, provides that the intermediate commander will review applications and allied papers and endorse to the area commander; indicate availability or non-availability of qualified officers for position vacancies named in statement required; and return applications when the applicant does not meet the basic administrative prerequisites and/or errors are found that cannot be corrected without referring the application to the originator or to the unit of assignment.

12.  Army Regulation 135-100, paragraph 2-3c, provides that the area commander will review commissioned officer applications for correctness and determine eligibility of each applicant.  They will return applications if the applicant is not recommended for appointment and will state the reasons for rejection.

13.  Army Regulation 135-100, paragraph 2-7, provides that on approval of an application, the appointing authority will assign officers to an appropriate branch. Branches for applicants not on active duty will be determined by their qualifications and the vacancies which they are to fill, or former commissioned officers of any U.S. Armed Forces on active duty in the Army in a warrant officer or enlisted status, if qualified, will have the option of accepting appointment in the branch in which they have been assigned or detailed, provided they are qualified or branch in which they have formerly held an appointment.



DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant’s argument that the ABCMR failed to consider all the evidence he submitted and that a TPU vacancy was found for him that he accepted on 18 September 2009, evidence of record shows that a UVS was found and that it was submitted with his application to the Reserve Appointment Branch for reappointment.  There is no evidence that shows he submitted a copy of the UVS in his initial request to the ABCMR for it to be considered as evidence.  He now provides a copy of the UVS.

2.  The applicant’s SMS shows that on 15 September 2009 the Reserve Appointments Branch denied his request for a UVS waiver for appointment in the IRR.  However, the Reserve Appointment Branch accepted the applicant’s application for appointment in the USAR against a UVS.  The acceptance of the application determined he was administratively eligible to apply for reappointment.  In response to the applicant's inquiry, MSG C---- provided a UVS which the applicant submitted.  However, there is no evidence that shows the applicant was assigned against the vacancy, or that his reappointment request was denied based on the lack of a position vacancy in a TPU.

3.  With respect to the applicant’s argument that his request for reappointment was disapproved by both the CA and QM branches, when he was told that his application would be considered  by a reappointment board, evidence of record shows the applicant was administratively eligible to apply for reappointment.  The appointing authority (Reserve Appointments Branch) forwarded the applicant’s reappointment application, along with an 18 September 2009 UVS recommendation, to both the CA and the QM branches for recommendation; this was a proper exercise of their discretionary authority in such matters.  Both branches reviewed his application and did not recommend him for reappointment.  The application was returned and terminated without further processing.  

4.  By memorandum, the Chief, Reserve Appointments Branch returned the applicant’s application informing him of the CA and QM branch's recommendations.  The reason was not given for the applicant’s disapproval of reappointment in the USAR.  However, Army Regulation 135-100, paragraph 2-7, clearly states on approval of an application, the appointing authority will assign officers to an appropriate branch.  Branches for applicants not on active duty will be determined by their qualifications and the vacancies that they fill.  Based on the disapproval of his reappointment, it is presumed that the applicant did not meet the qualifications for the branches he formerly held.  Therefore, there is no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20100018156, dated 5 October 2010.



      _______ _   _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)                                         AR20100028108



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ABCMR Record of Proceedings (cont)                                         AR20100027496



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