IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100028299 


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, through her Member of Congress, the removal of the "unsatisfactory participation" status from her records.

2.  The applicant states her unit incorrectly processed her transfer to another unit.  As soon as she became aware of this error, she alerted her unit and they admitted the error.

3.  The applicant provides:

* Orders 02-043-015, dated 12 February 2002
* a statement from her former platoon sergeant
* ARPC Form 249-E (Chronological Record of Retirement Points), dated
5 November 2010
* a statement from her former Acting SSA (Supervisory Staff Administrator)
* a statement from her former personnel sergeant
* her State of Nevada Marriage Certificate

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 records show she enlisted in the U.S. Army Reserve (USAR) on 26 April 1999.  She agreed she would incur a statutory military service obligation of 8 years and a contractual obligation of 6 years as a member of a troop program unit (TPU) and 2 years in the Individual Ready Reserve (IRR).

3.  She also acknowledged if she were assigned to a TPU of the Selected Reserve, she would immediately commence training with a TPU and she would be required to satisfactorily participate as an assigned member of a TPU for the entire term of her statutory or contractual obligation.  She was assigned to Company C, 983rd Engineer Battalion, Monclova, OH.

4.  Her records show she entered active duty for training (ADT) at Fort Leonard Wood, MO, on 15 September 1999.  She completed basic combat and advanced individual training and she was awarded military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist).  She was released from ADT to the control of her USAR unit of assignment on 8 February 2000.

5.  The specific facts and circumstances surrounding her unsatisfactory participation are not available for review with this case.  However, her records contain a copy of Orders 02-043-015, issued by Headquarters, 88th Regional Support Command, Fort Snelling, MN, dated 12 February 2002, that show she was released from Company C, 983rd Engineer Battalion, and reassigned to the USAR Control Group (Annual Training), effective 27 February 2002, in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, or Transfers), paragraph 4-15, by reason of unsatisfactory participation.

6.  Her current ARPC Form 249-E shows that during the periods 26 April 2001 to 25 April 2002 and 26 April 2002 to 25 April 2003 she participated in some drills, on and off; however, she did not earn sufficient retirement points to make either period a qualifying year towards non-regular retirement.

7.  On 4 May 2007, having completed her statutory obligation, she was honorably discharged from the USAR. 

8.  On 31 July 2008, the Army Discharge Review Board denied her petition to change the reason for her reassignment to the USAR Control Group as an unsatisfactory participant.

9.  She submitted the following documents:

	a.  a statement from her former platoon sergeant, dated 5 November 2010, who states she was a member of his platoon at the time and that her performance was exceptional.  However, she had been influenced by her husband at the time who was an Army recruiter.  The advice and direction she was given by her husband was not in her best interest as he insisted that she be transferred out the 983rd Engineer Battalion.  This did more harm than good because the pressure from him [her husband] created an injustice to her [the applicant].

	b.  a statement from the same individual, dated 7 July 2004, who states she was transferred from Company C, 983rd Engineer Battalion, as an unsatisfactory participant.  She had moved to Cleveland, OH, based on her husband's job in the Cleveland Recruiting Battalion.  She had expressed her desire to the company commander.  The company commander, in violation of Army Regulation 140-10, commuting distance, was not allowed to transfer and instead, she was transferred to the USAR (IRR) as an unsatisfactory participant.

	c.  a statement of support from a sergeant first class, dated 11 December 2004, states the applicant had been a Soldier at the 1st battalion, 333rd Infantry Regiment in Flint, MI, since 2002.  She lived in OH and drove for 2 hours to drill with the Reserve which is indicative of her dedication and motivation.  She had an outstanding performance rating regarding her attendance.

10.  Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Paragraph 4–15 of this regulation provides for involuntary reassignment for unsatisfactory participation.  It states a TPU or IMA (Individual Mobilization Augmentee) Soldier who has completed IET (initial entry training) and been awarded an MOS and is not within 3 months of ETS (expiration of term of service), who fails to participate satisfactorily may be reassigned to the appropriate control group of the IRR. Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings per Army Regulation 135-178 (Enlisted Administrative Separations) chapter 13, when determined to be in the best interest of the Army.  Commanders will not take reassignment action under this paragraph solely to spare a Soldier from administrative separation proceedings for other than unsatisfactory participation per Army Regulation 135-178.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the specific facts and circumstances that led to her reassignment as an unsatisfactory participant in February 2002.  However, her record contains a properly-issued order, published by an appropriate authority, directing her release from her TPU to the USAR Control Group (IRR) for unsatisfactory participation.

2.  It appears the applicant failed to satisfactorily participate as required by her statutory or contractual agreement.  Accordingly and as required by regulatory guidance, she was reassigned to the IRR as an unsatisfactory participant.  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.  She has provided insufficient 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.  Since there is neither an apparent error nor injustice, there is insufficient evidence to grant her 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.



      ___________XXX__________
               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)                                         AR20100028299



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1