IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120006930 


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, reconsideration of his earlier request to correct his military records by showing he was released from the Active Guard Reserve (AGR) on a date earlier than 16 March 2009.

2.  The applicant restates in a letter addressed to the Secretary of the Army much the same argument that he offered in the original case.

	a.  He states that he served 4 years on active duty as an infantry Soldier; 
2 years in the Reserve as an Army Firefighter; and 9 years and 10 months as an AGR Soldier.  He submitted a letter during his last tour of duty requesting release from the AGR for the purpose of returning to the Regular Army.  His request was delayed for over 34 days by his chain of command resulting in it being received by the U.S. Army Human Resources Command, St Louis, Missouri (HRC-STL) too late for any action to be taken.

	b.  He contends that he submitted documentation with time stamps showing he had submitted a properly-completed DA Form 4187 (Personnel Action) requesting release from the AGR program and reenlistment to active duty on or about 101 days out, which was within the required 90 days out.  He also contends that the time stamps show his request was not forwarded for over 
34 days.  His request was denied because it appeared he had sent it in too late.

	c.  He was stunned by the Board's decision.  He contends that he had provided indisputable proof that he had submitted his request in time to his higher command to act on and to forward it through the chain of command.  This DA Form 4187 needed one digital signature from the battalion commander, yet it took from 12 December 2008 to 15 January 2009 to acquire it.  Once it left the battalion, it took 5 days to reach HRC-STL.  If that 5-day travel time had been from when he had submitted the request, it would have arrived prior to the 90-day cut off; would have been acted upon; and he would still be serving his country.

	d.  He contends that many accusations were made in the response from the Board denying his request; but interestingly, the documentation showing these accusations, or who made them, was not provided.  Furthermore, he contends that most, if not all of these accusations did not even pertain to his request and should have had no bearing on the outcome of his request.  Comments were made that corrections needed to be made or that additional documents were missing.  He states that this is untrue because the DA Form 4187 that he sent was virtually unchanged, with the exception of the signature block that he had filled out for his detachment commander that was changed to the battalion commander.  There was a reference made to the need for a DA Form 368.  He contends that this form would not have been necessary until after his release from the AGR.  Prior to such release, the form would have been useless.

	e.  He contends that he did not complain for more than 8 years about not being able to get promoted to staff sergeant, pay grade E-6, due to a paperwork problem.  He was content and able to do his job as a sergeant, pay grade E-5.  He would have liked the added pay and authority; however, he cannot drop his being unjustly put out of the Army when he knows he is right and had provided the proof to that effect.

	f.  He contends that this episode has been frustrating and demeaning to him.  He feels a gross injustice had been done resulting in nearly 16 years of his life going for nothing.  At this point, all he has left is his pride in being able to say he served his country honorably, and to receive a flag when he dies.

	g.  He requests a relook at the documents and correspondence to determine if what the Board did was just and/or appropriate.  If the Board's action was not appropriate, he requests to be let back into the Army to continue to serve his country in a position commensurate with his training, knowledge, experience, and that meets the needs of the Army.

3.  The applicant provides copies of:

	a.  the original Board proceedings dated 23 August 2011 with attachments;

	b.  Memorandum, Army Board for Correction of Military Records (ABCMR), dated 25 August 2011;
	c.  Letter, ABCMR, dated 26 September 2011, addressed to the applicant; and

	d.  a cover page wherein he states that he highlighted certain passages and dates in the proceedings and attached "post-it" notes numbered 1 to 10.  The copy received by the staff of the Board does not show any highlighted passages and does not contain any "post-it" notes.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110002484, on 23 August 2011.

2.  The original board proceedings determined that the applicant had not taken action far enough in advance of his expiration term of service (ETS) to allow for the processing of his request.  Furthermore, it was determined that his request was initially returned to him because it did not contain the required documents.  His second submission was also incomplete and was not processed until he provided the required documents.  Consequently, when the request reached HRC-STL, it was within 90 days of his ETS and could not be processed.  In view of this evidence, and without sufficient argument or documentation from the applicant to dispute it, the Board concluded there was no basis to grant his request.

3.  In this case, the applicant restates much of his previous argument but with some added details.  However, he does not provide any new documentation.  In the interest of justice, it would be appropriate for the Board to consider his expanded argument and to relook the documentary evidence.

4.  On 17 March 2003, the applicant reenlisted in the USAR and was ordered to active duty in an AGR status for the additional active duty commitment of 
6 years.  His ETS was 16 March 2009.

5.  The only available copy of the applicant's DA Form 4187 wherein he requested release from the AGR program for the purpose of enlistment into the Regular Army shows he dated it 11 December 2008.  The commander's section indicates a recommendation for approval but is not signed or dated.


6.  A series of email communications between the applicant and his chain of command dated from 11 December 2008 through 22 January 2009 state the following:

	a.  11 December 2008: Applicant informs his commander that he spoke with the recruiters who will submit a DA Form 368 after the DA Form 4187 goes forward.

	b.  11 December 2008: Commander informs applicant that he will come in to work the next day and sign the DA Form 4187.  He directs the applicant to forward the DA Form 4187 with his letter, etc, because he wants to make sure everything is correct and that nothing is missing before sending it forward.  The commander asks the applicant what his ETS is and when orders are expected to be published.

	c.  11 December 2008:  the applicant responds that his ETS is 17 March 2009 and orders should be received approximately 16/17 December 2008.

	d.  12 December 2008: Applicant informs 412th Engineer Command that his commander will submit a memorandum when he returns to work.

	e.  15 January 2009: 412th Engineer Command staff requested that the brigade process it as soon as possible because of the applicant's pending ETS  and that the paperwork was not correct the first time.

	f.  22 January 2009: the applicant was informed by HRC-STL that his request had been received but was being returned without action because it was within 90 days of his ETS.  There was not enough time to process his request.  He was also informed that the AGR position he was currently holding was considered to be excess and would not be filled after his ETS.

	g.  22 January 2009: Applicant inquires of his commander about what had to be corrected.  He questioned how digitally signed and scanned documents could be altered.  He tells the commander that the DA Form 4187 that was sent forward was the same one sent on 12 December 2008 with time to spare to process.  It would have probably would have been processed had it been received when originally sent.

7.  On 29 June 2009, the Director, Full-time Support Directorate, U.S. Army Reserve Command, Fort McPherson, Georgia, responded to the applicant's Representative in Congress inquiry concerning why his unit was unable to process his two requests for release from the AGR program.

	a.  It was explained that the applicant's first request was not submitted through his chain of command with the required documentation.  The applicant was then counseled by his commander who provided him information on the process and gave him business cards of active duty recruiters who could assist him with the release process.

	b.  The applicant's second request was also incomplete when received; however, the unit processed the request after receiving the required documents.  His request was subsequently received at HRC-STL too late and was returned without action.

	c.  The applicant's request to enlist in the Active Army was not within the area of control of his Reserve unit.  At the time he was eligible to reenlist in the AGR program but did not take action to facilitate such reenlistment.  Therefore, his time of service expired and he was discharged from the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his request for immediate release from the AGR was delayed by his chain of command due to no fault of his own resulting in his being unable to enlist in the Regular Army with a minimal or no break in service.

2.  The available evidence clearly shows that the applicant had submitted his initial request with what should have been sufficient time to be processed prior to his ETS; however, it did not contain the required documentation and was returned.  His subsequent request was also lacking the required documentation and was held until receipt of such.  It appears that these delays to acquire the necessary documents resulted in his request arriving at HRC-STL too late to be processed.

3  In view of the above, the applicant's request should be denied.

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 AR20110002484, dated 23 August 2011.



      _______ _  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)                                         AR20120006930





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ABCMR Record of Proceedings (cont)                                         AR20120006930



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