IN THE CASE OF:	  JONES, RODNEY

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130022195 


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 the following orders to state, "The period of service under these orders is exempt from the 5-year limit as provided in Title 38, U.S. Code (USC), section 4312":

* Orders R-09-006238 issued by the U.S. Army Reserve (USAR) Personnel Command, St. Louis, MO, dated 13 September 1999
* Orders R-08-578402 issued by the U.S. Army Human Resources Command (HRC) (formerly known as the USAR Personnel Command), St. Louis, MO, dated 24 August 2005

2.  The applicant states:

	a.  He took a leave of absence from his civilian job with the U.S. Postal Service (USPS) as a career city letter carrier to serve on active duty as a member of the USAR.  It was his understanding that his reemployment rights would be protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  When he reenlisted in 2005, his employer removed him from a leave without pay status because the active duty orders mentioned above stated his active duty commitment was indefinite.  Both the USPS and Department of Labor (DOL) have said his orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) did not show he served in support of Operation Enduring Freedom.  He pointed out that his DD Form 214 shows he was awarded the Global War on Terrorism Service Medal, but he was still denied reemployment.

	b.  Since his honorable separation (i.e., retirement) from military service, both the USPS and DOL have failed him and, in effect, acted contrary to the memorandum from the Assistant Secretary of Defense, dated 26 September 2001.  His understanding of USERRA provisions is that members who volunteer for active duty under Title 10, USC, section 12301(d), to support missions associated with the national emergency are exempt from the USERRA 5-year limit.

	c.  Since the active duty orders he was issued did not include language stating his service was exempt from the 5-year USERRA rule, the DOL has not been able to support him.  As a former career employee, he has not been able to have his employment rights restored.  This is possibly due to lack of clarity.

3.  The applicant provides:

* USPS Form 50 (Notification of Personnel Action)
* memorandum from the Office of the Assistant Secretary of Defense, dated 26 September 2001, subject:  Reemployment Protection for Activated Reserve Component Members
* letters from DOL, dated 2 October 2008 and 14 February 2011
* DA Form 638 (Recommendation for Award)

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 previously served in the U.S. Marine Corps (13 July 1979 to 13 July 1982), U.S. Marine Corps Reserve (31 January 1983 to 14 May 1984), and Regular Army (15 May 1984 to 4 December 1993).

3.  He was assigned to the USAR Control Group (Reinforcement) from 5 December 1993 to 9 September 1996 and to a USAR troop program unit from 10 September 1996 to 25 September 1999.  He held military occupational specialty 92Y (Unit Supply Specialist).

4.  He reenlisted in the USAR for 6 years on 22 August 1999.  His expiration of term of service (ETS) date was established as 21 August 2005.

5.  USAR Personnel Command Orders R-09-006238, dated 13 September 1999, ordered him to active duty in an Active Guard Reserve (AGR) status and assignment to the 301st Quartermaster Company, Grand Rapids, MI, as a supply sergeant under the provisions of Title 10, USC, section 12301(d), for an active duty commitment of 3 years beginning 26 September 1999.

6.  USAR Personnel Command Orders R-09-006238A02, dated 22 May 2002, further amended his active duty commitment to 5 years, 10 months, and 27 days with a release from active duty (REFRAD) date of 21 August 2005 to establish simultaneous ETS and REFRAD dates.

7.  On 12 May 2004, HRC issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

8.  On 9 August 2005, he executed an indefinite reenlistment in the USAR.  He indicated he understood that his reenlistment was for an indefinite period and he would be allowed to remain in an AGR status until he reached the retention control point for his grade (E-7) or maximum age, whichever came first.

9.  HRC Orders R-08-578402, dated 24 August 2005, released him from active duty and discharged him for the purpose of immediate reenlistment in the USAR effective 9 August 2005.  These orders stipulated:

* he reenlisted and was ordered to active duty in an AGR status indefinitely
* he was assigned to the USAR Recruiting Battalion, Des Moines, IA, as a recruiter
* the authority for his active duty is Title 10, USC, section 12301(d)

10.  He retired from active duty on 30 June 2007 and he was placed on the Retired List in the rank/grade of sergeant first class/E-7 effective 1 July 2007.  His DD Form 214 for the period ending 30 June 2007 shows he completed 7 years, 9 months, and 5 days of creditable active service during this period.  Item 18 (Remarks) shows:

* he completed his first full term of service
* no entry indicating he was ordered to active duty in support of a contingency operation under the provisions of Title 10, USC
* no entry indicating deployed service in support of a contingency operation

11.  On 2 October 2008, DOL notified him that the Veterans Employment and Training Services under Title 38, USC, section 4322, reviewed his claim against the USPS and found he was not eligible for reemployment rights.  In making this determination, DOL officials reviewed his DD Form 214, military orders, and documents from his former employer.  He had to have had no more than 5 years of active duty to be eligible for reinstatement.  He exceeded that by more than 2 years.  He was not eligible for USERRA protection.

12.  On 14 February 2011, DOL notified him that their office reviewed his Veterans Employment Opportunity Act complaint and determined he was not entitled to a veterans' preference.  The determination was based on a letter from DOL, dated 2 October 2008, which stated he exceeded the 5-year limit by more than 2 years.  This alone disqualified him from reinstatement eligibility under USERRA and a veterans' preference.  The USPS also found he was disqualified due to excessive moving violation(s) which applies to all applicants regardless of veteran status.

13.  He submitted a DA Form 638, dated 21 December 2006, that shows he was awarded the Meritorious Service Medal for meritorious service from 1 June 1997 to 30 June 2007 (a 10-year period).

14.  The applicant submitted a copy of the referenced Assistant Secretary of Defense memorandum, dated 26 September 2001, which essentially states:

	a.  USERRA provides broad reemployment protections for members of the Armed Forces following periods of military service.  However, there is a limit as to how long an employee can be absent from his/her civilian job to perform military duty and retain his/her reemployment rights.

	b.  Title 38, USC, section 4312(c), sets a 5-year limit for retaining reemployment.  However, certain duty is exempt from the 5-year limit.  Section 4312(c)(4)(A) exempts service when involuntarily ordered to active duty under Title 10, USC, section 12302.  Additionally, Title 10, USC, section 4312(c)(4)(B), exempts service for those members "ordered to or retained on active duty (other than for training) under any provision of law because of war or national emergency."

	c.  Department of Defense Instruction (DODI) 1205.12 implements USERRA. 
Paragraph 6.6 requires the Secretaries of Military Departments to make an exemption determination for those periods of active duty when a service member is ordered to or retained on active duty (other than for training) under any provision of the law because of war or national emergency.  The DODI further states that if the Secretary determines that the purpose of the order to or retention on active duty is for the direct or indirect support of the war or national emergency, then the order of the service member should be so annotated since the period of service is then exempt from the 5-year cumulative service limit.

	d.  With Presidential Proclamation 7463, dated 14 September 2001, that declared a "National Emergency by Reason of Certain Terrorist Attacks," it would be appropriate to make a determination that the period of service performed by members who volunteer for active duty under Title 10, USC, section 12301(d), to support missions and operations associated with the national emergency is exempt from USERRA 5-year limit.  If such a determination is made, it would be helpful for the affected service member to have a statement included in the orders that "the period of service under those orders is exempt from the 5-year limit as provided in Title 38, USC, section 4312(c)(4)(B)."

15.  Title 10, USC, section 12301(d), provides that at any time an authority designated by the Secretary concerned may order a member of a Reserve Component under his jurisdiction to active duty or retain the member on active duty with the consent of that member.  However, a member of the Army National Guard of (ARNG) the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the Governor or other appropriate authority of the State concerned.

16.  Title 38, USC, section 4312(c)(4)(A), provides that any person whose absence from a position of employment is necessitated by reason of service in the Uniformed Services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if the person (or an appropriate officer of the Uniformed Service in which such service is performed) has given advance written or verbal notice of such service to such person's employer; the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the Uniformed Services does not exceed 5 years; and, except as provided in subsection (f), the person reports to or submits an application for reemployment to such employer in accordance with the provisions of subsection (e).  This subsection shall apply to a person who is absent from a position of employment by reason of service in the Uniformed Services if such person's cumulative period of service in the Uniformed Services, with respect to the employer relationship for which a person seeks reemployment, does not exceed 5 years, except that any such period of service shall not include any service performed by a member of a Uniformed Service who is ordered to or retained on active duty under Title 10, section 688, 12301(a), 12301(g), 12302, 12304, or 12305 or under Title 14, section 331, 332, 359, 360, 367, or 712, or ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress as determined by the Secretary concerned.

17.  Army Regulation 140-111 (USAR Reenlistment Program) prescribes policies, responsibilities, and procedures for the USAR Reenlistment Program.

	a.  Paragraph 8-9 states the initial tour of active duty in an AGR status will be 3 years.  The active duty service commitment for all subsequent AGR tours of duty will be governed by the term of service of a Soldier's reenlistment agreement (not to exceed 6 years) or the length of the extension of the current enlistment or reenlistment agreement.  The following policy applies to enlisted USAR Soldiers:

* for initial entry in an AGR status, the orders will cite 3 years
* for continuation in an AGR status by reenlistment, the orders will cite the number of years of active duty that coincides with the term of service of the reenlistment
* for continuation in an AGR status under a current enlistment or reenlistment agreement, the orders will cite the specified period of active duty for the remaining term of service of the current enlistment or reenlistment agreement

	b.  Paragraph 8-11 states for sound personnel management, both the ETS and REFRAD dates of AGR personnel must be the same.

18.  Army Regulation 635-5 (Separation Documents) establishes 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 be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty, to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.

19.  Army Regulation 635-5, chapter 2, contains guidance for preparation of the DD Form 214.  It states item 18 (Remarks) is used for Headquarters, Department of the Army, mandatory requirements when a separate block is not available and as a continuation of other selected items.  For a Reserve Soldier ordered to active duty and deployed to a foreign country, the following three statements must be entered in item 18:
* 
ORDERED TO ACTIVE DUTY IN SUPPORT OF (operation name) PER TITLE 10, USC, (applicable section)
* SERVICE IN (name of county deployed) FROM (inclusive dates, for example, YYYYMMDD-YYYYMMDD)
* SOLDIER COMPLETED PERIOD FOR WHICH ORDERED TO ACTIVE DUTY FOR THE PURPOSE OF POST-SERVICE BENEFITS AND ENTITLEMENTS

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his active duty orders should be corrected to show language that reads, "The period of service under these orders is exempt from the 5-year limit as provided in Title 38, USC, section 4312."

2.  The applicant was ordered to active duty under the provisions of Title 10, USC, section 12301(d) as follows:

	a.  On 26 September 1999, he was voluntarily ordered to active duty for a period of 3 years in an AGR status with assignment to the 301st Quartermaster Company as a supply sergeant and not in support of any specific operation.  His active duty began prior to September 2001.  His orders correctly show the authority for his active duty as Title 10, USC, section 12301(d).  His orders were later amended extending his active duty commitment to a total period of 5 years, 10 months, and 27 days to align his REFRAD with his current ETS.  This period of active duty was terminated by his discharge on 8 August 2005 for the purpose of immediate reenlistment.

	b.  On 9 August 2005, he was ordered to active duty in an AGR status with assignment to the Des Moines Recruiting Battalion as a recruiter for an indefinite period in conjunction with his reenlistment, also not in support of any specific any specific operation.  These orders also correctly show the authority for his active duty as Title 10, USC, section 12301(d).  This period of active duty was terminated on 30 June 2007 by reason of his retirement due to sufficient service.

3.  He was issued a DD Form 214 for the period beginning 26 September 1999 and ending 30 June 2007 that captured his active duty service in the AGR Program.  A statement was made in relation to completion of his first term of service but no statement is listed relating to the authority for his active duty and location of his deployed service since he was neither ordered to active duty in support of a specific contingency operation, such as Operation Enduring Freedom, Operation Noble Eagle, etc., nor deployed to a specific location.

4.  There is no provision in the Army regulation to list the requested language on the DD Form 214.  The Assistant Secretary of Defense memorandum does not mandate an entry on the DD Form 214; it requires the orders to be properly annotated, and in the applicant's case, all his orders to active duty are properly annotated with the proper authority.  There is neither an error nor an injustice.

5.  The ABCMR can correct a record to remedy an error or an injustice.  However, the applicant has not shown any error or injustice in his case.  The intent of USERRA, through Title 38, USC, section 4312(C)(4)(B), provides members with protection.  In the applicant's case, he was voluntarily ordered to active duty in 1999 in an AGR status and not in support of the Global War on Terrorism.  Likewise, his indefinite reenlistment on 8 August 2005 and subsequent continuation on active duty in the AGR Program were voluntary actions that also were not in support of the Global War on Terrorism.

6.  His period of active duty service under either of the orders is not exempt from the 5-year limit as provided in Title 38, USC, section 4312.  Any issues and/or problems with civilian employers are not within the purview of this Board.  Therefore, he is not entitled to the 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 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)                                         AR20130022195



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ABCMR Record of Proceedings (cont)                                         AR20130022195



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