IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110002484 


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, correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was released from the Active Guard Reserve (AGR) on a date earlier than 16 March 2009 which would enable him to enlist in the Regular Army with a minimal break in service.

2.  He states that on or about 11 December 2008, he submitted a DA Form 4187 (Personnel Action) requesting release from the AGR Program and enlistment in the Active Component (AC).  This form required one digital signature with either the recommended approval or disapproval checked by his higher command before it was forwarded to the 412th Engineer Command and then to the Army Human Resources Command (HRC), St. Louis, MO, for action.

3.  He also states that HRC advised that the request needed to be in St. Louis no later than (NLT) 90 days out.  His original submission was submitted approximately 100 days out.  His higher command did not act on this request for over 30 days, not forwarding it until 15 January 2009.  He believes if his request had been forwarded in a timely manner, as integrity and ethics dictate, he would not have had to leave the Army.  He would have been able to immediately enlist and continue to serve his county.  Since leaving the Army he has attempted to enlist, but since he is taking medication for blood pressure (diagnosed and prescribed while in the AGR Program) he is considered PDQ (permanently disqualified) at MEPS (Military Entrance Processing Station).  This was not or would not have been a factor in his enlistment if his request had been forwarded on time.
4.  He further states that he strongly believes his request was correct and in the proper format, and contained all required information.  Even if it was not, if it had been forwarded to HRC in a timely manner there would have been sufficient time for him to make corrections and resend it so it could be acted on before his release date from the AGR Program and enlistment into the AC.  The unreasonable delay in processing and forwarding his request resulted in it being returned from HRC with "No action taken" and subsequently and unjustly his expiration of term of service (ETS) from the U.S. Army.

5.  He provides:

* a DA Form 4187, dated 18 December 2008
* emails between himself, his Command, and HRC, dated 11 and 12 December 2008 and 15 and 22 January 2009
* his DD Form 214 for the period ending 16 March 2009
* a letter from the Director, Full Time Support Directorate, U.S. Army Reserve (USAR) Command, to a Member of Congress, dated 23 June 2009
* his letter to a Member of Congress, dated 7 December 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 18 March 1997 for 6 years.

2.  Orders R-03-002279, issued by the U.S. Army Reserve Personnel Command, St. Louis, dated 27 March 1999, ordered the applicant to active duty in an AGR status for 3 years under the authority of Title 10, U.S. Code, section 12301(d) and not to be accessed into the strength of the active Army.  He entered active duty on 9 May 1999.

3.  Orders R-03-002279A01, issued by the same command, dated 21 May 2002, amended his period of active duty commitment and release from active duty (REFRAD) date to 3 years, 10 months, and 9 days with a REFRAD date of
17 March 2003.

3.  Orders R-03-371645, issued by the same command, dated 18 March 2003, shows he was REFRAD on 16 March 2003 for the purpose of immediate reenlistment in the USAR on 17 March 2003, at which time he reenlisted in the USAR and he was again ordered to active duty in an AGR status for the additional active duty commitment of 6 years.

4.  On 11 December 2008, the applicant submitted an electronically-signed
(e-signed) DA Form 4187 addressed through his chain of command to HRC requesting release from AGR status for immediate enlistment to the AC.  Section V (Certification/Approval/Disapproval) of the DA Form 4187 contains an "X" in the recommend approval block; however, item 13 (Signature) and item 14 (Date) are blank.

5.  In email correspondence, dated 11 December 2008, he advised his commander that a recruiter informed him that once the DA Form 4187 was forwarded to HRC and approved, they would submit a DA Form 368 (Request for Conditional Release) for him to enlist in the AC.  All that was required was 4 digital signatures.  He also advised his commander that if the DA From 4187 did not make it to HRC in time and ETS orders were cut he would have to put in leave for 80 remaining days in order not to lose over 2 months pay.

6.  In email correspondence, dated 12 December 2008, he advised his commander that per HRC, ETS orders would be published approximately 16/17 December 2008 with an ETS date of 17 March 2009.

7.  In email correspondence, dated 15 January 2009, the first sergeant, 412th Engineer Command requested the command process the applicant's request as soon as possible since the applicant was going to ETS on 3 March 2009.

8.  In email correspondence, dated 22 January 2009, HRC advised the applicant that his request had been received and it was being returned without action for the following reasons:

* He was within his 90 day window for ETS; therefore, there was not enough time to process his request
* The position he was currently holding was considered to be in excess and would not be back filled upon his ETS

9.  Orders C-02-903211, issued by HRC, dated 18 February 2009, attached the applicant to Fort Monmouth, NJ for separation processing with a reporting date of 16 March 2009.

10.  He was honorably discharged from active duty on 16 March 2009 by reason of completion of required active service.

11.  In a letter, dated 23 June 2009, the Director, Full Time Support Directorate, USAR Command, advised a Member of Congress that the applicant's allegations 

pertained to his unit's inability to process his two requests for release from the AGR causing him to be discharged from the Army completely.  The command indicated that the applicant did not submit his first request with the required documents through the chain command, which was the reason no action was taken on that request.  The command counseled the applicant, provided him information on the process, and gave him business cards of Active Army recruiters to assist him with the release process.

12.  The USAR Command official also stated the applicant's second request was incomplete when it was received, but the 412th Engineer Command processed the request upon receipt of required documents.  The applicant's request was submitted to HRC and returned without action because the request was not received within the required timeframe prior to the applicant leaving the Army.  The applicant's request to enlist in the Active Army with a minimal break in service was not in the 412th Engineer Command's area of control.

13.  The USAR Command official further stated the applicant was eligible to reenlist in the AGR Program, but he did not take any action to facilitate his reenlistment.  Therefore, his time of service expired and he was discharged from the Army.  The unit commander had an open-door policy, which was available to the applicant, but he did not utilize the policy in order to obtain assistance in addressing his allegations and concerns.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant reenlisted in the USAR and continued AGR status for 6 years on 17 March 2003.  On 11 December 2008, he submitted a DA Form 4187 requesting immediate release from the AGR Program for the purpose of enlisting in the AC without a break in service.  His ETS was established as 16 March 2009.

2.  On 22 January 2009, HRC advised him that his request had been received; however, it was being returned without action since it was within 90 days of his ETS and there was not enough time to process his request.  Additionally, the position he was currently holding was considered to be in excess and would not be back filled upon his ETS.

3.  On 18 February 2009, HRC issued orders attaching him to Fort Monmouth for separation processing with a reporting date of 16 March 2009.  Accordingly, he was honorably discharged from active duty on 16 March 2009 by reason of completion of required active service.

4.  The Full Time Support Directorate stated that he did not submit his first request with the required documents which was the reason no action was taken on the request.  His second request was also incomplete; however it was processed by the command upon receipt of the required documents.  His request was then submitted to HRC and returned without action because it was not received within the required timeframe prior to his ETS date.

5.  His contentions have been noted and found to be without merit.  He has not sufficiently shown that he was unjustly delayed by his command during the processing of his DA Form 4187.  There is no evidence of record and he has not shown his request was not forwarded to HRC in a timely manner for processing within enough time preventing his discharge from the Army completely.

6.  It appears he did not take action far enough in advance of his ETS to facilitate his enlistment in the AC.  Through no fault of his command and HRC, there was insufficient time to process his paperwork.  Without evidence, it cannot be concluded that he submitted his request with all required documents within the required timeframe for action prior to his discharge from the Army.  Therefore, he is not entitled to correction of his DD Form 214 to show he was released from the AGR on a date earlier than 16 March 2009.

7.  In view of the foregoing, there is no basis for granting him 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.



      __________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)                                         AR20110002484



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ABCMR Record of Proceedings (cont)                                         AR20110002484



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