IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120010465 


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, removal of all adverse information (separation packet) from his records. 

2.  The applicant states he had no service remaining obligations and he submitted a request to transfer to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)) in early 2004.  His unit lied to him and kept him on their rolls to create fiction of non-attendance of unit training.  They also concocted several fake documents including a hearing.  While this was transpiring his chain of command assured him that a transfer to the IRR was underway. 

3.  The applicant provides a statement from a witness and a Compact Disc (CD) that contains the following documents:

* Letter to the Secretary of the Army
* Letter to the Assistant Secretary of the Army (Manpower and Reserve Affairs)
* Dental record and dental appointment sheet
* Officer Evaluation Report
* DA Form 4651-R (Request for Reserve Component Assignment or Attachment)
* Self-authored fax inquiry
* DA Form 1559 (Inspector General (IG) Action Request) dated 9 August 2011

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.  Having had prior enlisted service in the U.S. Marine Corps Reserve and the Army National Guard, the applicant's records show he was appointed as an infantry second lieutenant in the USAR and executed an oath of office on 7 January 2001. 

3.  He was ordered to active duty in support of Operation Enduring Freedom on 7 February 2003.  He was assigned to the 982nd Signal Company, 335th Signal Command, with duty with the 50th Signal Battalion, Fort Bragg, NC.

4.  On 31 October 2003, his chain of command recommended him for promotion to first lieutenant (1LT).  He had met the criteria for promotion and he was assigned to a 1LT position with the 335th Signal Company.  The promotion Qualification Statement stated:  This mobilized officer will be assigned to a position commensurate with the grade to which he is being promoted upon release from active duty or reassigned to the IRR if the officer cannot find an appropriate position within 180 days of release from active duty.  

5.  He was released from active duty on 17 November 2003.  On 4 December 2003, the USAR Command issued him a promotion memorandum to 1LT with a date of rank and effective date of 9 May 2003. 

6.  There are is no evidence in his records of what occurred after his release from active duty in November 2003.  Likewise, there is no indication in his records in the form of a request, memorandum, endorsement, orders, or communication regarding his transfer to the IRR.  However, he provides:

	a.  DA Form 4651-R, dated 16 February 2004, wherein he requested assignment to the IRR.  This form is signed by the applicant but contains no effective date and is not signed by his commander.  
	b.  A self-authored statement, dated 27 February 2004, wherein he stated that he had faxed the DA Form 4651-R to his unit S-3 on 16 February 2004 and he had not heard from his chain of command. 

7.  His Army Reserve Personnel Command Form 249-2-E (Chronological Statement of Retirement Points) shows, aside from membership points, he did not earn any active or inactive duty points between 30 December 2003 and 29 December 2004. 

8.  His service records contain various DA Forms 4856 (Developmental Counseling Form), starting in February 2004, showing he was absent from scheduled unit training assemblies or multiple unit training assemblies, now known as Battle Assembly (BA).  It also contains multiple letters sent by certified/registered mail as well as phone records informing him that he was absent from the scheduled BAs for the scheduled periods.

9.  One of the DA Forms 4856, signed by the unit operations officer on 13 July 2004 shows the unit operations officer wrote "I was able to contact [Applicant].  When I informed him that we had drill and asked him why he was not there, his response was "Look, I don't want anything to do with you guys.  I'm just waiting to be processed out."  

10.  The applicant's records further show multiple follow-on certified letters informing him that he was absent from the scheduled BAs for the scheduled period:

   a.  In each letter, the immediate commander also advised the applicant that he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would declare the applicant an unsatisfactory participant.

	b.  In each case, the applicant was also provided an opportunity to explain and/or provide justification for the unexcused periods.  Also in each case, he was told continued absence could result in separation or reassignment and, in each instance a counseling form was initiated with an entry that his chain of command attempted to contact him but there was no response.

	c.  The certified mail receipts show the official mail was addressed to the applicant's last known mailing address and that the certified letters were returned unclaimed.

11.  On 12 September 2007, again by certified mail, the Commanding General (CG), 335th Theater Signal Command notified the applicant that in accordance with paragraph 2-17 of Army Regulation 135-175 (Separation of Officers), he was required to show cause for retention in the USAR by reason of moral or professional dereliction.  The CG stated that the applicant had intentionally neglected or failed to participate satisfactorily in the Ready Reserve as evidenced by his failure to attend 9 or more scheduled inactive duty training during a 1-year period.  The CG further advised him of his rights, such as:

* Election to submit a resignation in lieu of involuntary separation
* Transfer to the Retired Reserve, if eligible
* Appointment of counsel and/or consulting counsel
* A board of officers
* The characterization of his service
* Submitting statements on his behalf
* Failure to accept or respond to this notification may result in board action proceedings in his absence.   

12.  There is no indication the applicant accepted or responded to this notification.  Accordingly, on 11 December 2007, the CG ordered his referral to an administrative separation board. 

13.  On 12 December 2007, by certified mail, the applicant was notified that a board of officers would convene on 26 January 2008 at Headquarters, 335th Theater Signal Command, East Point, GA, to determine if he should be separated from the USAR.  He was again advised of his rights and how to prepare for the board.  

14.  On 26 January 2008, a board of officers convened at Headquarters, 335th Theater Signal Command, East Point, GA.  The applicant was not present.  His appointed defense counsel attempted to make contact with him but there was no response. 

15.  The board determined that by the preponderance of evidence the applicant was guilty of committing acts of personal misconduct, specifically, he neglected or failed to participate in required Ready Reserve training in accordance with chapter 6 of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) as evidenced by his failure to attend 9 or more scheduled inactive duty training in 
1 year.  The board recommended discharge with an under other than honorable conditions characterization of service.  

16.  The convening authority (CG, 335th Theater Signal Command) approved the board's findings and recommendations but recommended the applicant's service be characterized as honorable.  Additionally, since the board recommended the applicant's elimination from the USAR, the CG, being the area commander, forwarded the action to Headquarters, Department of the Army (HQDA), as required by the governing regulation.  

17.  On 6 March 2008, a military attorney reviewed the separation packet and found it legally sufficient.  

18.  On 28 March 2008, the Chief of Army Reserve reviewed the involuntary separation board results pertaining to the applicant and recommended his discharge with an honorable characterization of service.  

19.  On 12 August 2008, HQDA reviewed the applicant's case and approved the findings and recommendations of the board that he be discharged.  HQDA ordered the issuance of an Honorable Discharge Certificate.  

20.  On 14 August 2008, the U.S. Army Human Resources Command, St. Louis, MO, published official orders honorably discharging the applicant from the USAR effective 14 September 2008.  

21.  He provides a statement, dated 17 May 2012, from an individual who states she was a witness and overheard a conversation in 2005 between two commanders who informed the applicant that they would act on his request to transfer him to the IRR.  The applicant had asked her to be present during the phone call because he was getting the run-around.  She also states that she believes the USAR has been playing games with the applicant and that it was his choice to transfer to the IRR. 

22.  Army Regulation 135-178 provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the USAR.  

	a.  Paragraph 2-12 (2-11 under the current regulation) states, while not all-inclusive, existence of one of the following or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction.  Officers discharged for any of the following reasons may be furnished an honorable or general discharge certificate, or an under other than honorable conditions discharge:  discreditable, intentional failure to meet personal financial obligations; mismanagement of personal affairs to the discredit of the service; mismanagement of personal affairs detrimentally affecting the performance of duty of the officer concerned; acts of personal misconduct (including, but not limited to, acts committed while in a drunken or drug-intoxicated); intentional neglect or failure to perform assigned duties, participate satisfactorily in required Ready Reserve training, comply with applicable directives to include but not be limited to furnishing a current address of record (the officer cannot be located through the address furnished) or maintaining a permanent residence, for mailing purposes, in the United States or its territories while traveling or residing in a foreign country other than one within the jurisdiction of an oversea commander.

	b.  Paragraph 2-14 states no person has an inherent right to continue service as an officer.  The privilege of service is his only as long as he performs satisfactorily.  Responsibility for leadership and example require effective performance of assigned duties and exemplary conduct at all times.  The Army has no place for officers who cannot meet these requirements, and their involuntary separation is essential.  In view of the rapidity with which hostilities can now occur and the attendant likelihood that many officers may be called to active duty on short notice, the same standards of efficiency and conduct apply to officers of all Reserve Components. 

	c.  Paragraph 2-15 states recommendation for involuntary separation may be originated by one of the following: a proper agency at HQDA regardless of an officer’s assignment, a commander with respect to a member of that command, or a duly constituted selection board, operating under official letter of instruction, in which the board may recommend individuals who should be involuntarily separated. 

	d.  Paragraph 2-18 states area commanders will take action on the recommendation of a board of officers acting on involuntary separation cases.  If the area commander in his review of a case in which involuntary separation has been recommended by the board of officers notes a substantial defect in the proceedings, he will take action.  Otherwise, forward the board proceedings to HQDA.  The area commander will indicate his recommendation for approval or disapproval.  When disapproval is recommended, the reasons will be given.

	e.  Paragraph 2-19 states when a board recommends the involuntary separation of an officer, HQDA will as appropriate approve the recommendations of the board and advise the commander concerned to take necessary action to separate the officer or disapprove the recommendations of the board, close the case, notify the officer and, if appropriate, the headquarters agency that recommended the involuntary separation.

23.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 4 prescribes policy and procedures governing the voluntary or involuntary assignment, reassignment, or transfer of a Soldier to and from the various control groups that comprise the IRR.  It states an officer who is not obligated to serve in a troop program unit (TPU), an Individual Mobilization Augmentee, or on active duty in an Active Guard Reserve status, by statute or contract may be reassigned to Control Group (Reinforcement) on request. 

24.  Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) prescribes policies governing the Army Military Human Resource Record Management program and applies to the active Army, ARNG, and USAR.  It states the AMHRR is a permanent record remaining under Army control 62 years from a Soldier’s final separation date to include retirement, separation, and death.  Upon the first day of the 63rd year records are transferred to the control of the National Archives.  The AMHRR Management Program is an essential military personnel information management program responsible for the archiving and storage of data, information, and documents authorized for filing in the AMHRR.  Personnel information and documents that comprise the AMHRR are processed into the Interactive Personnel Electronic Records Management System for storage and future use.  Table B-1 of Army Regulation 600-8-104 states elimination actions directed by HQDA will be filed in the restricted section of the AMHRR.  Additionally, proceedings by a board of officers will be filed in the performance/service section of the AMHRR. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he requested a transfer to the IRR and his chain of command gave him the run-around.  He submits a DA Form 4651, dated 16 February 2004, which shows he requested voluntary transfer to the IRR.  However, there is insufficient evidence to show this form was submitted to his unit commander or that his unit commander approved or denied it. 

2.  More importantly, given that there were no official orders published to transfer him to the IRR, the applicant knew or should have known that he remained assigned to a TPU and his continued attendance in unit training was not a matter of choice.  

3.  The applicant was required to attend all scheduled unit training.  It appears he chose not to do so.  According to the available evidence the applicant was aware that if he accumulated a certain number of unexcused absences within 1 year he could be declared an unsatisfactory participant.  The available evidence shows he was absent from BAs on multiple occasions.  In each instance, he was notified in writing at his last known address.  Accordingly, subsequent to his history of unexcused absence his chain of command notified him by certified mail to show cause for retention.  He failed to respond.  

4.  A board of officers convened in January 2008 to hear this matter.  The board found by a preponderance of evidence the applicant failed to participate in required training and recommended his separation with an under other than honorable conditions discharge.  The convening authority and area commander recommended an honorable discharge and forwarded the case to HQDA.  HQDA reviewed his case and approved the findings and recommendations.  Accordingly, he was honorably discharged from the USAR on 14 September 2008. 

5.  The applicant provided an IG Action Request dated August 2009, 3 years after he was discharged.  Had he requested IG assistance in a timely manner his issue could possibly have been resolved to his satisfaction or the IG could at least have corroborated his contentions.

6.  His board of officer's proceedings together with allied documents are correctly filed on his AMHRR and he provided no reason to remove such documents.  

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)                                         AR20120010465



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ABCMR Record of Proceedings (cont)                                         AR20120010465



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