BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130013519 


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 military record to:

* show her rank/grade of private (PV2)/E-2 instead of private PV1/E-1)
* show her correct time in service in the U.S. Army Reserve (USAR)
* fulfill her Student Loan Re-payment Program (SLRP) agreement

2.  The applicant states:

* her rank of E-1 was given after a commanding officer in another unit made them give her a rank
* her time in service is incorrect; she completed her 2-week drills and one weekend a month drills
* she had college transcripts from Howard University which would have entitled her to the pay grade of E-2 as promised by the recruiter
* the recruiter also promised that the Army would repay $500.00 per year of service; yet, she ended up paying for her own loans; she never received any payments under the SLRP incentive
* she was told she could not get her rank due to not passing the height and weight standards but she was never given the opportunity to do so 
* she had previously tried several times to correct her records, first upon arrival at her duty station and then her unit told her they did not have funds to send her to correct her records
* she even travelled from Connecticut to Maryland at her own expense to correct her records but that was a waste of time and money 

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 4 November 1983. 

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.  The applicant enlisted in the USAR for 6 years in the rank/grade of private (PV1)/E-1 on 28 February 1983.  In connection with this enlistment, she completed the following documents: 

	a.  DA Form 5139-R (LRP Statement of Understanding, Selected Reserve), wherein she stated she understood she was enlisting for assignment in a military occupational specialty (MOS) approved by Headquarters, Department of the Army for the LRP and currently holds that MOS, or if enlisting, must meet such MOS qualifications upon completion of initial active duty for training (IADT).  She also stated she was enlisting for MOS 91B (Medical Specialist) for 6 years.  She further understood her loan repayment eligibility would be terminated if she violated the terms of this contract, changed her MOS (unless authorized), or incurred a period of non-availability. 

	b.  DD Form 1966/1 (Application for Enlistment) that shows she was enlisting in pay grade E-1.  Item 40d (Data Verification by Recruiter - Education) shows the entry "High School Diploma" and item 37 (Remarks) shows the entry "College transcripts not available at this time, applicant has been briefed concerning presenting transcripts within one year." 

	c.  DA Form 3540 series (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting, Reenlisting, or Transferring, Into Troop Programs Units (TPU) of the USAR) shows she was enlisting for the Selected Reserve Incentive Program (SRIP) Cash Critical Bonus incentive and the Loan Repayment incentive. 

	d.  DA Form 4960 (SRIP Addendum to DA Form 3540), dated 28 February 1983 and signed by the applicant and a witnessing official, that shows she was enlisting for an MOS which has been approved for incentive entitlement (MOS 91B) with a $12,000 enlistment bonus.  She acknowledged she understood the bonus would be terminated if she became an unsatisfactory participant and if recoupment is required under a certain formulas. 

	e.  Also attached to the enlistment contract is a Student Loan Application from the Connecticut Student Loan Foundation.  The form is of poor quality paper and is illegible and hard to read.  However, attached to it is a Telephone or Verbal Conversation Record, dated 28 February 1983, by the USAR Guidance Counselor, that reads "the enclosed loan application on [Applicant] is in fact a true copy of the student loan in their financial office; the poor copy is said to be due to the paper on which the loan was prepared."  

3.  She entered IADT on 17 June 1983 and successfully completed training for award of MOS 91B.  She was honorably released from IADT on 4 November 1983 upon completion of MOS training.  Her DD Form 214 shows she completed 4 months and 18 days of active service.  It also shows in:

* Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) – "PV1" and "E-1"
* Item 12h (Effective Date of Pay Grade) – "83-02-28"

4.  Upon her release from active duty, she returned to her USAR TPU, the 2290th U.S. Army Hospital, Rockville, MD.  

5.  On 26 December 1984, in response to her letter, dated 16 October 1984, the unit Personnel Officer acknowledged receipt of her letter and stated that her advancement to E-2 was effected with a date of rank of 5 October 1983.  Additionally, her interest in becoming a private first class was commendable and her college transcripts were in fact filed in her service records.  However, according to her last physical, dated 2 March 1983, she did not meet the height and weights standards prescribed in Army Regulation 600-9 (Army Weight Control Program).  Although she met the required education and the minimum time in grade for promotion to E-3, she could not be promoted until she met the height and weight standards.  If she had taken the Body Fat Percentage (Caliper) Test and now meets the standards, she should forward documentation to him immediately and if not, she must take the Caliper test. 

6.  Attached to the letter is a DA Form 4187 (Personnel Action) signed by the Personnel Officer advancing her to E-2 effective 5 October 1983.  

7.  Beginning in August 1985, and continuing in September, October, November, and December 1985, her records show her chain of command began notifying her by certified/registered mail that she was absent from the scheduled unit training assembly or multiple unit training assembly (UTA/MUTA) for the scheduled period.  In each letter, she was also advised that she had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would declare her an unsatisfactory participant.  In each case, she was also provided an opportunity to explain and/or provide justification for the unexcused periods.  

8.  In March and April 1986, her chain of command contacted her telephonically but there was no response at the numbers provided by the applicant (as documented in a counseling form). 

9.  On 2 May 1986, by memorandum, the unit commander indicated the applicant had incurred 9 unexcused absences on 17 November 1985 and had offered no reason for non-attendance.  She had failed to answer her phone and offered no emergency reason which prevented her from attending drill.  The unit commander declared her an "Unsatisfactory Participant." 

10.  On 13 May 1986, by certified mail, the unit commander notified the applicant that he had declared her an "Unsatisfactory Participant" and would be transferring her to the Individual Ready Reserve (IRR) for the balance of her service obligation. 

11.  On 17 June 1986, Headquarters, 97th USAR Command, Fort Meade, MD, published Orders 15-2-U reassigning her from the 2290th U.S. Army Hospital, Rockville, MD, to the U.S. Army Reserve Personnel Center (Annual Training) St. Louis, MO, effective 17 June 1986, by reason of being "Unsatisfactory Participant."  Her rank is listed as PV2. 

12.  On 21 February 1989, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders D-02-019470 ordering her honorably discharged from the USAR on 27 February 1989 by reason of having completed her military service obligation.  Her rank is listed as PV2. 

13.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) she was advanced to PV2/E-2 in the USAR on 5 October 1983. 

14.  There is no record of inactive duty training (IDT) or annual training (AT) in the applicant's DA Form 201 (Military Personnel Records Jacket).  Likewise, there is no indication she performed any periods of active duty between the date she was released from active duty and the date she was ultimately discharged from the USAR, which would have warranted the issuance of a DD Form 214.

15.  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.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  Chapter 2 states items 4a and 4b show the active duty rank/grade held at the time of separation and item 12h shows the effective date of rank (the rank a Soldier held at the time of separation).

16.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a 1 year period.

17.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant raises three issues: her rank/grade, USAR service credit, and SLRP entitlement. 

2.  With respect to her rank/grade:

	a.  When the applicant entered IADT on 17 June 1983, she held the rank/grade of PV1/E-1.  She also held this rank/grade at the time of her release from active duty and back to her USAR status.  When the applicant later corresponded with her unit personnel officer, it was determined that she had been promoted to PV2/E-2 on 5 October 1983.  

	b.  Because her promotion to E-2 occurred while the applicant was on active duty, her DD Form 214 should be corrected to show the rank/grade of PV2/E-2 and the date of rank of 5 October 1983.

3.  With respect to the USAR service credit, the applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) is not available for review with this case.  Additionally, there is no indication she completed any periods of IDT or AT.  But even if she did, correction of her retirement points or qualifying service for non-regular retirement should be addressed to the Commander, U.S. Army Human Resources Command, Fort Knox, KY.  The applicant is advised to contact HRC with the supporting documents to update her ARPC Form 249-E.

4.  With respect to the SLRP incentive, while it is clear the applicant enlisted for the SLRP incentive, a determination of any entitlements to this option is not only problematic but also virtually impossible.

	a.  First, there is no indication of what was paid or unpaid at the time because the old Army Finance and Accounting Office no longer exists and the Defense Finance and Accounting Service had not been established until years later.  Second, it is unclear if a loan payment had been made to the lender.  Third, the personnel officer indicated the applicant had not passed the height and weight standards, which indicates she was flagged and prevented from having any favorable personnel actions.  Fourth, the applicant was later declared an "Unsatisfactory Participant" which effectively terminated any incentive she may have had.  Last but not least, given the applicant's lack of due diligence, the doctrine of laches apply in her case.

	b.  There is simply insufficient evidence to establish any entitlements or to determine if an error or an injustice has in fact occurred.  The contention that "No payments were ever made" is not supported by any documentary evidence.  The burden of proof rests with the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_X____  __X______  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
* deleting from items 4a and 4b of her DD Form 214 the entries "PV1" and E-1" and adding the entries "PV2" and "E-2" respectively
* deleting from item 12h the entry "83-02-28" of her DD Form 214 and adding "83-10-05"

2.  The Board further determined that the evidence presented is 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 the issues of USAR service credit and entitlement to payments under the Student Loan Repayment Program.



      _______ _  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)                                         AR20130013519



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ABCMR Record of Proceedings (cont)                                         AR20130013519



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