IN THE CASE OF:	  

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20120004462 


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 the issuance of a 20-year retirement letter.

2.  He states his unit did not notify him he had reached his expiration term of service (ETS) date.  They sent him to a class at Camp Shelby, MS, at the time he should have reenlisted.  He has tried many times to get this corrected, but no one would help him.

3.  He provides:

* a self-authored statement
* orders
* letters he received from the Inspector General (IG), Headquarters, U.S. Army Reserve Command (USARC)
* letters he received from his Member of Congress
* letters to his Member of Congress from the Office of the Inspector General and the Congressional Inquiry Division, Chief of Legislative Liaison
* an Express Mail Receipt
* his Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points)

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.  On 15 December 1979, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years.  After completing initial entry training, he was awarded military occupational specialty 62F (Lifting/Loading Equipment Operator).

3.  On 19 October 1985, he reenlisted in the USAR for a period of 6 years, which had the effect of terminating his previous 6-year enlistment.  Orders 165-6, issued by Headquarters, 121st U.S. Army Reserve Command, dated 25 October 1985, honorably discharged him effective 18 October 1985.  These orders state his enlistment on 15 December 1979 was terminated on the effective date of the orders as a result of reenlistment for 6 years.  As a result, his ETS became       18 October 1991.

4.  On 25 September 1991, he again reenlisted in the USAR for a period of 6 years.  As a result, his ETS became 24 September 1997.

5.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) shows, on 3 December 1994, he was flagged for the weight control program.

6.  A second DA Form 268 shows, on 3 December 1995, he was flagged for Army Physical Fitness Test (APFT) failure and the weight control program.

7.  His DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period ending November 1996 shows he failed the run portion of the APFT, he was pending a medical profile, and he had shown a lack of progress in the weight control program.

8.  His record does not include a medical profile.

9.  His record includes a DA Form 2A (Personnel Qualification Record (Enlisted)) bearing his signature verifying he had reviewed the information on the form on 2 November 1996.  A handwritten entry on the form corrected the date of expiration of his statutory obligation to 24 September 1997.  

10.  The complete facts and circumstances of his discharge are not available.  However, his record includes Orders 267-29, dated 24 September 1997, issued by Headquarters, 81st Regional Support Command (RSC), Birmingham, AL.  The orders honorably discharged him from the USAR in the rank/grade of sergeant/E-5 effective 24 September 1997 under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel), chapter 11.

11.  On 12 January 2012, the Army Discharge Review Board (ADRB) informed him his request for a change in the character and/or reason for his discharge was denied.  

12.  He provides:

	a.  Orders 103-493, issued by the 81st RSC, dated 27 February 1997, which assigned him to Camp Shelby, MS, for 6 duty days to attend single-channel ground and airborne radio system (SINCGARS) training.  The orders show his reporting date was 16 March 1997 and that he attended the training as ordered.

	b.  Correspondence from the IG, 81st RSC, dated 6 October 1998, which states, in part, the IG's office conducted a thorough inquiry into his allegations that a noncommissioned officer intentionally misplaced his physical profile and refused to provide him a copy of his SINCGARS course completion certificate, and that he was improperly discharged.  The IG informed him the allegations were unsubstantiated.

	c.  Correspondence which shows he submitted an inquiry regarding problems with his discharge to his Member of Congress in 1999.  

	d.  His ARPC Form 249-E, which shows he completed 17 years, 9 months, and 10 days of service qualifying for retirement.

13.  In a self-authored statement, he states, in part:

	"On the 24th day of September 1997, I was processed out of the United States Army Reserve in Tupelo, MS, without any notice or reason.  For many years, I tried to find out why I was discharged; I used the military's chain of command, but there was no help there.  I filed IG complaints but nothing happened.  I went to Congressman R.W.'s office but they would not help.  For many years, I thought the reason for my discharge was because I was on the overweight program, but that was not the case."  

   "In 2008, I was talking to a lady at the National Personnel Records Center in St. Louis, MO, and she could not give me the reason why I was discharged because my records had been sealed.  She then transferred my call to another branch of the military.  The lady there told me that the reason I was discharged was because I had failed to reenlist prior to my ETS date.  Prior to your ETS date, the office personnel are to inform you of this upcoming date and set up a time for you to come in and review your records; this never happened for me."
   
   "In March of 1997, I was sent to Camp Shelby, MS, to a SINCGAR Radio Class for 5 days; I passed the course with flying colors.  It is my belief that I was sent to this course so that I would not be at the USAR center when it was time to review my records and reenlist.  My MOS is [62F].  I am not in [communications], and I never should have been sent to this class."
   
14.  He continues, stating he signed three 6-year contracts with the USAR.  He was qualified to be in his unit, and he was discharged short of the 18 years he signed up for.  He states he planned to serve his country for 30 years.

15.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states APFT failure and entry into the Weight Control Program require a flag.  

   a.  Flags for APFT failure block promotion, reenlistment, and extension only.  A flag is not initiated if the Soldier has a limiting physical profile that specifically prohibits taking the APFT.

   b.  Flags for weight control block only attendance at full-time civil or military schooling, promotion, awards and decorations, assumption of command, and reenlistment or extension.  Commanders may approve reenlistments and extensions under certain medical conditions as advised by the supporting total Army career counselor.

16.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States and the USAR.  

	a.  It states qualified enlisted Soldiers may be discharged to permit their reenlistment in accordance with Army Regulation 140–111 (USAR Reenlistment Program) provided they apply for and are qualified for reenlistment.  Special instructions contained in the discharge orders will read as follows:

   "Your enlistment or assignment in the ARNG/USAR on (date) was terminated on the effective date of this order as a result of your immediate reenlistment.  No formal discharge will be issued by reason of this reenlistment."
   
   b.  Chapter 11 of the version in effect at the time of his discharge states, in part, on expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the separation authority.

17.  Title 10, U.S. Code, Section 1176(b), provides a sanctuary provision for Reserve enlisted members who are credited with at least 18 but less than 20 years of service completed under Title 10, U.S. Code, Section 1332; and are selected to be involuntarily separated or whose term of enlistment expires and who are denied reenlistment.

18.  Army Regulation 135-180 (Qualifying Service for Retired Pay – Nonregular Service) states each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service.  This notification will be issued by the appropriate authority at the time 20 satisfactory years of service are completed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for issuance of a 20-year retirement letter.

2.  He executed three 6-year enlistment contracts.  He executed his second and third contracts before the preceding contracts had expired, thereby terminating the preceding contracts before he had completed his 6-year term.  As a result, upon execution of his third contract, he was obligated to serve through 24 September 1997, on which date he had completed 17 years, 9 months, and 10 days of service qualifying for retirement.  Termination of an existing enlistment contract upon execution of a new enlistment contract is standard practice for all Soldiers, and there is no evidence showing inequity or injustice in the fact that his final ETS fell short of the 18 years of service required to enter sanctuary.

3.  The available records show he was flagged on:

* 3 December 1994, for the weight control program 
* 3 December 1995, for APFT failure and the weight control program

4.  His DA Form 2166-7 for the period ending November 1996 shows he failed the run portion of the APFT, he was pending a medical profile, and he had shown a lack of progress in the weight control program.

5.  Considering that, as late as November 1996, he had shown a lack of progress in the weight control program, it appears he was not eligible to reenlist prior to reaching his ETS on 24 September 1997.  As an NCO with more than 17 years of service, it is reasonable to expect he would have known the consequences of not making progress in the weight control program included denial of reenlistment.  In fact, he states he believed this was why he was discharged. 

6.  The preponderance of evidence indicates he was ineligible to reenlist due to lack of progress in the weight control program.  As a result, he did not complete the 18 years of service required to reach sanctuary, and he did not complete the 20 satisfactory years of service required for notification of eligibility for retired pay at age 60.  In the absence of evidence showing error, inequity, or injustice in his discharge, there is no basis for issuance of a 20-year retirement letter.  

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)                                         AR20120004462



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ABCMR Record of Proceedings (cont)                                         AR20120004462



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