IN THE CASE OF:	  

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130001739 


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 correction of her discharge date to show 2 September 2009 instead of 16 December 2011.  She also requests, based on her requested correction, deletion of the time lost shown in item 29 (Dates of Time Lost During This Period) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 December 2011.

2.  The applicant states her actual date of discharge/release from active duty was 2 September 2009.  Also, her DD Form 214 for the period ending 16 December 2011 incorrectly shows she had time lost due to being absent without leave (AWOL) during the periods:

* 2 September to 18 September 2009
* 28 October 2009 through 27 July 2011

3.  The applicant provides:

* DD Form 214 for the period ending 1 August 2001
* DD Form 214 for the period ending 16 December 2011
 
CONSIDERATION OF EVIDENCE:

1.  On 19 November 1999, the applicant enlisted in the U.S. Army Reserve (USAR) in the Delayed Entry Program.  On 17 March 2000, she enlisted in the Regular Army for a period of 3 years.  She completed training and was awarded military occupational specialty (MOS) 92G (Food Service Specialist).
2.  On 1 August 2001, she was honorably released from active duty for pregnancy and transferred to the USAR Control Group (Annual Training) to complete her remaining Reserve obligation.

3.  On 2 August 2002, she was transferred from the USAR Control Group (Annual Training) to a USAR Troop Program Unit (TPU). 

4.  On 21 September 2005, she completed an immediate reenlistment in the USAR for 6 years.

5.  She was ordered to active duty in the Active Guard Reserve (AGR) Program effective 11 October 2005 for a period of 3 years.

6.  A DA Form 4187 (Personnel Action) shows that on 8 April 2008, she requested continuation in the AGR program with an adjusted release from active duty (REFRAD) date of 20 September 2011.  The form shows her primary and duty MOS as 42A (Human Resource Specialist). 

7.  Orders R-09-579157A02, issued by the U.S. Army Human Resources Command (HRC), dated 11 April 2008 amended Order R-09-579157A, dated 19 September 2005.  It shows her period of active duty (AGR) commitment effective 11 October 2005 was amended as follows:

* from a period of 3 years with a REFRAD date of 10 October 2008
* to a period of 5 years, 11 months, and 11 days with a REFRAD date of 20 September 2011
 
8.  An email was sent to the applicant notifying her of her new duty assignment in Harvey, IL with a tentative report date of 28 September 2009.  The email stated the assignment was not yet finalized and could change before orders were published.  A subsequent notification email indicated she was removed from the assignment instructions for the unit in Harvey, IL.

9.  New assignment instructions, dated 30 June 2009, were sent to the applicant per email identifying a new assignment in Decatur, IL with a tentative reporting date of 28 September 2009.

10.  Orders R-07-984826, issued by HRC, dated 8 July 2009, stated she was on active duty in an AGR status and would proceed on permanent change of station to the 236th Transportation Company, Decatur, IL with a reporting date of 28 September 2009.

 11.  A DA Form 4187, dated 27 July 2009, shows the applicant requested an early release from the AGR Program effective 1 August 2009.  The reason given was that her family situation had changed and it had become more difficult for her and her mother to continue traveling back and forth every month.  She didn't have any other means to care for her child and requested an early release from her active duty tour.  A statement from her mother, attached to her request, shows her mother was not agreeable to continuing as the guardian for the applicant's daughter and that she would have to find someone else to care for her daughter if she wanted to continue in the military. 

12.  A Soldier Management System (SMS) entry, dated 9 July 2009, contains an email addressed to the AGR Program Manager's office stating the applicant did not wish to continue in the AGR Program and asked whether her assignment to the new duty station could be cancelled.  The response was that a completed DA Form 4187 requesting early separation from the AGR Program needed to be received at HRC St. Louis not later than 27 September 2009, otherwise, the applicant needed to continue to report to her new duty station on 28 September 2009 as ordered.  If she failed to do so she needed to be processed for AWOL. 

13.  On 2 September 2009, her duty status was changed from "present for duty" to "AWOL."  The DA Form 4187 showing this change indicates an email with an early release request was enclosed.

14.  On 2 September 2009, she was flagged for adverse action.

15.  An HRC memorandum, dated 9 September 2009, states the Commander, HRC had approved her request for early release from the AGR Program.  She would be released on 30 October 2009.

16.  On 18 September 2009, her status was changed from "AWOL" to "present for duty" effective 18 September 2009.

17.  An SMS entry, dated 23 September 2009, states "Waiting on SM's flag to be removed so orders can be published."

18.  An SMS entry, dated 28 September 2009, states the applicant was on the phone with questions about separation from the AGR program.  She was referred to the separations branch.

19.  A DA Form 4187, dated 16 November 2009, shows her duty status was changed from "present for duty" to "AWOL" effective 28 October 2009.

20.  On 27 November 2009, her duty status was changed to "dropped from the rolls."

21.  Orders 09-337-00026, issued by Headquarters, U.S. Army Reserve Command (USARC), dated 3 December 2009, show as a member of the USAR Control Group (AGR) she was assigned to the U.S. Army Maneuver Support Center, Fort Leonard Wood, MO effective 27 November 2009, for processing under Army Regulation 630-10 (Personnel Absences - AWOL, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings).  Additional instructions on these orders stated that she would be deleted from the USAR strength on the effective date of the order.

22.  A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 17 December 2009, shows the applicant was AWOL effective 28 October 2009 and was still absent on 27 November 2009.

23.  A DD Form 458 (Charge Sheet), dated 17 December 2009, shows summary court-martial charges were preferred against the applicant for being AWOL effective on or about 27 October 2009, with the intent to remain permanently away from her unit and did remain so in desertion.  

24.  A DD Form 616 (Report of Return of Absentee), dated 27 July 2011, shows the applicant surrendered to military authorities on 27 July 2011. 

25.  Orders 347-0160, issued by the U.S. Army Installation Management Command, dated 13 December 2011, discharged the applicant effective 16 December 2011.  

26.  Army Regulation 140-30 (Active Duty in Support of the USAR and AGR Management Program) prescribes policy and procedures for selecting, assigning, attaching, using, managing, and administering USAR Soldiers on active duty in the AGR program.  Paragraph 9-1 states:

	a.  Soldiers may request voluntary early release from active duty as prescribed in this regulation and in Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  Such releases will be consistent with the needs of the Service and the law and regulations providing for the retention of reservists on active duty.

	b.  Requests for voluntary early release will be forwarded in writing through command channels to the first general officer commander or his or her designated representative, and then to the approval authority contained in Army Regulation 635-200.  Requests from Soldiers attached to full-time support positions will go through the area commander.  Requests will specify a desired release date.  Approved requests will normally receive a release date of
180 days from the date of approval.

	c.  Approved requests for termination of AGR status normally will result in a REFRAD for continued service in the USAR if eligible.  Soldiers will be discharged or retired only if they are eligible and apply.

	d.  Approval authorities can disapprove requests for voluntary early release and require Soldiers to comply with valid active duty orders.

27.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes Army policy for the suspension of favorable personnel actions (Flag) function of the military personnel system.  It provides principles of support, standards of service, and policies regarding the initiation, transfer, removal, and management of Flags.  It states the purpose of a Flag is to prevent and/or preclude—

	a.  Execution of favorable actions to a Soldier who may be in an unfavorable status (not in good standing).
	
	b.  Movement of a Soldier when it is in the best interests of the Army for the Soldier to remain in his or her current unit or at his or her current location until cleared of ongoing actions.

	c.  The Flag is not the final disposition.  A Flag is emplaced during some type of disciplinary or administrative action until that action is concluded.  The Flag should be initiated within 3 working days after identification of the Soldier’s unfavorable status and removed within 3 working days after determination of the final disposition.

	d.  The suspension of favorable actions on a Soldier is mandatory when military or civilian authorities initiate any investigation or inquiry that may potentially result in disciplinary action, financial loss, or other loss to the Soldier’s
rank, pay, or privileges.

28.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.

2.  Orders were issued ordering her to report to an assignment with a unit in Decatur, IL on 28 September 2009.

3.  On 27 July 2009, she requested early release from the AGR Program effective 1 August 2009.

4.  On 2 September 2009, she was placed in an AWOL status from her unit of assignment at the time (428th Transportation Company).  On that same date she was flagged for adverse action.

5.  An HRC memorandum, dated 9 September 2009, states her request for early release from the AGR Program was approved effective 30 October 2009.  However, based on an SMS entry, it appears REFRAD orders were never published because she was flagged at the time.

6.  On 28 October 2009, she was again placed in an AWOL status from the 428th Transportation Company and she was dropped from the rolls effective 27 November 2009.  Therefore, lacking an approved absence, she was required to continue to report for duty.

7.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that she was correctly shown as AWOL as reflected in her records and that she was flagged effective 2 September 2009 effectively rendering the HRC memorandum stating her request for REFRAD was approved to be null and void.  Absent clear evidence to the contrary, there appears to be no error or injustice in her discharge on 16 December 2011 or in the time lost shown on her DD Form 214.  As such, there is an insufficient evidentiary basis to support granting her 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)                                         AR20130001739



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ABCMR Record of Proceedings (cont)                                         AR20130001739



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