BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130002759 


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 reconsideration of his earlier request for correction of his records to show, after removal from the Temporary Disability Retired List (TDRL), he entered active duty on 17 April 2009 vice 20 August 2009.  He now requests payment of retired pay for the period 1 April 2009 through 19 August 2009.

2.  The applicant states:

* he has not received any retired pay for the period 1 April 2009 through 19 August 2009
* his attempts to reenlist were not the result of a willful or self-desired choice to change his military occupational specialty (MOS) but rather an attempt to secure financial stability
* he has no desire to change his MOS and protested the idea
* he was placed on the TDRL in 2007
* on 30 April 2009, he was found fit and ordered back to active duty
* his orders and instructions from the U.S. Army Physical Disability Agency (USAPDA) stated the Lansing Military Entrance Processing Station (MEPS) would issue orders placing him on active duty and assigned him immediately
* on 17 April 2009, he reenlisted only to find repeated denial of his reenlistment
* the 3rd Recruiting Brigade, Fort Knox, KY instructed the MEPS to enlist him based on the needs of the Army and placed him in a slot for the Explosive Ordnance Disposal school with an effective date of 30 July 2009
* he contacted his Congressman for assistance in getting an earlier reporting date
* on 16 July 2009, he received an eligibility notice for Tricare along with a bill to pay premiums for a period his family was not covered
* on 27 July 2009, he reported to the Lansing MEPS and was told he had to wait until 22 December 2009 for an active duty slot and that he would be returned to his original job
* after threats of contacting his Congressman, MEPS personnel found him a slot with a reporting date of 20 August 2009
* he has contacted the Defense Finance and Accounting Service (DFAS) but has been advised only his Congressman can make an inquiry
* he believes he is owed a total of $9,163.60

3.  The applicant provides:

* Congressional correspondence
* self-authored email

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 AR20120016653, on 10 January 2013.

2.  Regarding retired pay, the applicant failed to exhaust administrative remedies available to him.  However, DFAS was contacted with regard to his pay request and has agreed he is entitled to additional retired pay and will administratively correct his pay records and pay him monies due.  Therefore, the issue of retired pay will not be further discussed in this Record of Proceedings.

3.  The applicant provides Congressional correspondence and a self-authored email which contains new arguments.  These arguments were not previously considered by the Board and as such warrant consideration at this time.

4.  On 23 August 2006, the applicant enlisted in the Regular Army for a period of 4 years and 24 weeks.  He completed training and was awarded MOS 88M (Motor Transport Operator).  He was promoted to private first class (PFC)/E-3 on 23 August 2007. 

5.  A Physical Evaluation Board (PEB) convened on 30 August 2007 and found him physically unfit due to asthma.  The board recommended his placement on the TDRL and he concurred. 
6.  He was honorably retired on 21 October 2007 and placed on the TDRL in the rank/grade of PFC/E-3 on 22 October 2007.  He completed 1 year, 1 month, and 29 days of active service of which 2 months was completed in the rank of PFC.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) – "PFC" and "E-3"
* Item 12h (Effective Date of Pay Grade) – "2007  08  23"

7.  A TDRL PEB convened on 5 March 2009 and found him fit for duty.  He concurred on 20 March 2009.

8.  On 30 March 2009, the USAPDA published Orders D089-01 ordering his removal from the TDRL effective 30 April 2009.

9.  On 6 April 2009, he signed his Election Relative to Enlistment statement.  The statement:

	a.  informed him that by law and regulation, he was entitled to reenlist within 90 days following his removal from the TDRL in the component and grade in which he was serving prior to placement on the TDRL.  

	b.  advised him that since he was in the Regular Army, such reenlistment would be accomplished in his permanent grade and he would be reappointed to any higher temporary grade in which he was serving on active duty the day preceding the date he was placed on the TDRL.  He elected to reenlist in the Regular Army within 90 days following his removal from the TDRL.

10.  On 18 June 2009, the USAPDA revoked Orders D089-01, dated 30 March 2009.  In its place, on 26 June 2009, USAPDA published Orders 177-19 ordering his removal from the TDRL effective 29 July 2009.

11.  On 10 July 2009, the applicant's Congressman was advised by Army officials that the applicant would be removed from the TDRL effective 29 July 2009 and, provided he remained morally and physically qualified, he was to report to Fort Jackson, SC, for training on 30 July 2009.

12.  On 15 July 2009, he signed a USAREC Form 1035.  This form shows the entry "I, (Applicant), having enlisted in the Army's Future Soldier Training Program on 20090417 with a scheduled active duty date of 20090730 do hereby initiate this request to change my MOS."

13.  On 20 July 2009, the applicant was notified by his Congressman that he would be removed from the TDRL effective 29 July 2009 and that he was to report to Fort Jackson, SC on 30 July 2009.

14.  On 20 August 2009, he enlisted in the Regular Army in the rank/grade of PFC/E-3 for a period of 3 years and 2 months.  He served in MOS 88M at Fort Sill, OK, and he was promoted to specialist (SPC)/E-4 on 8 April 2011. 

15.  He was honorably released from active duty on 2 September 2012 by reason of completion of his required service.  His DD Form 214 for this period shows in:

* items 4a (Grade, Rate or Rank) and 4b (Pay Grade) – "SPC" and "E-4"
* item 12a (Date Entered Active Duty This Period) – "2009  08  20"
* item 12c (Net Active Service This Period) – "0003  00  13"
* item 12i (Effective Date of Pay Grade) – "2011  04  08"

16.  On 10 January 2013, the ABCMR granted the applicant partial relief by:

* correcting his records to show he was promoted to SPC/E-4 with an effective date and date of rank of 20 August 2009
* paying him the difference between E-3 and E-4 pay from 20 August 2009 to 8 April 2011
* amending his DD Form 214 to show his entry date as 20 August 2009
* denying his request for correction of his reentry date to show 17 April 2009 vice 20 August 2009

17.  Army Regulation 601-210 (Active and Reserve Component Enlistment Program), chapter 3, states individuals are eligible for reenlistment if they have been removed from the TDRL and meet other necessary requirements.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides for the promotion and reduction of enlisted Soldiers.

	a.  Paragraph 1-21 (Former TDRL personnel) states Soldiers returning to active/Reserve duty in grade sergeant or below will be considered for promotion. Eligibility will be based on the date of rank (DOR) and service they would have had if they had not been placed on the TDRL.  Waivers for time in grade (TIMIG) and time in service (TIS) apply, as granted by chapters 2, 3, and 5.  Eligible Soldiers in grades PV1 through PFC meeting the TIMIG and service requirements will be promoted or promoted as soon as possible.  It will be within 30 days after returning to active/Reserve duty.  Effective date and DOR will be the date of current entry on active/Reserve duty.

	b.  Paragraph 2-3c states the eligibility criteria for automatic promotion to SPC are 24 months TIS and 6 months TIMIG but may be waived at 18 months TIS and 3 months TIMIG.

19.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 states that item 12 shows the record of service.  A breakdown of entries in item 12 is as follows:  item 12a shows the date of entry on active duty; item 12b shows the Soldier's transition/separation date; and item 12c shows all service, less time lost.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request for correction of his records to show his reentry date as 17 April 2009 vice 20 August 2009 was carefully considered.

2.  With respect to his reentry grade: 

	a.  He enlisted on 23 August 2006 and he retired by reason of temporary disability on 21 October 2007.  Prior to his retirement, he was promoted to PFC on 23 August 2007.  He remained on the TDRL from 21 October 2007 to 29 July 2009, a period of 1 year, 9 months, and 8 days.

	b.  When the TDRL PEB found him fit and he enlisted in the Regular Army, as required by law and regulation, his reenlistment was accomplished in his permanent grade of PFC.  

	c.  TDRL time counts towards TIS and TIG.  He previously completed 1 year, 1 month, and 29 days of active service, 2 months of which was in the rank of PFC.  He remained on the TDRL from 21 October 2007 to 29 July 2009, a period of 1 year, 9 months, and 8 days.  His total combined service (active duty and TDRL) was 2 years, 11 months, and 7 days.

	d.  Based on normal promotion at 24 months TIS and 6 months TIG, he could have enlisted in the rank/grade of SPC/E-4 on 30 July 2009.

3.  Although the applicant was originally removed from the TDRL on 30 April 2009, those orders were revoked and he was subsequently removed from the TDRL on 29 July 2009.  Therefore, since he was still on the TDRL he could not have enlisted prior to 30 July 2009.
4.  Army officials advised a member of Congress the applicant would be reporting to Fort Jackson, SC, on 30 July 2009.  The Congressman, in turn, advised the applicant accordingly.  Further, the applicant was enrolled in the Army's Future Solder Training Program and had a scheduled active duty reporting date of 30 July 2009.  However, he did not reenlist until 20 August 2009.

5.  Evidence shows the applicant attempted to reenlist each time he was removed from the TDRL and since he had a scheduled training report date and was advised he would be reporting on 30 July 2009, any doubt should be resolved in his favor.  Therefore, his records should be corrected as indicated below.

6.  DFAS is administratively correcting the applicant's pay records for the period April through 29 July 2009.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  __x______  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20120016653, dated 10 January 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned by corrected by:

   a. Amending his enlistment contract of 20 August 2009 to show he reenlisted on 30 July 2009 in the rank and grade of SPC/E4.

   b. Correcting his DD Form 214 for the period ending 2 September 2012 as follows:

(1) Item 12a to show "2009 07 30"
(2) Item 12c to show "0003 01 04"

   c. Paying him any pay and allowances due to him as a result of these corrections.
2.  As far as the reconsidered issue of correcting the applicant's records to show his reentry date as 17 April 2009 vice 20 August 2009, the Board further determined the evidence was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his records to show he reenlisted on 17 April 2009.




      _______ _ 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)                                         AR20130002759



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ABCMR Record of Proceedings (cont)                                         AR20130002759



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