BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007364 


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 previous request for correction of his expiration of term of service (ETS) date to 3 January 2021, reinstatement in the Active Guard Reserve (AGR) until 3 January 2012 with back pay and allowances, and retirement credit for the period between his retirement and reinstatement dates.

2.  The applicant states:

   a.  He is requesting reconsideration on the basis that his duty status at the time of his AGR reenlistment contract on 24 November 2004 was clearly not considered.  The Board obviously assumed, based on his reenlistment order, his duty status was active duty in an AGR status, which was not the case.  He has included his orders transferring him from an active duty AGR status to a deployed troop program unit (TPU) reservist status.  The Board would not have had access to these records as all reference to this deployment had been removed from his official military personnel file prior to his arrival at the retirement transition point.  His deployment status had to be reestablished for his DD Form 214 (Certificate of Release or Discharge from Active Duty) based on financial records and the hard copy he provided.

   b.  In paragraph 4 of the Consideration of Evidence section of his Record of Proceedings (ROP), it states, "while serving Iraq."  This is correct as he was mobilized and deployed as a member of the 308th Quartermaster (QM) Company, U.S. Army Reserve (USAR), to Operation Iraqi Freedom (OIF).  Army Regulation (AR) 135-18 (The AGR Program), chapter 1, paragraph 1-1a(1) clearly defines the duty description of an AGR Soldier on active duty under Title 10, U.S. Code (USC), section 12301.  This does not allow for deployment of a Soldier in this duty status.  His assignment orders, additional instructions, stated, "You are a member of the Selected Reserve; therefore, in the event your USAR unit is ordered to active duty or mobilized you are immediately assigned to that unit and considered a unit member for all purposes."

   c.  Orders Number 3390906, dated 4 December 2004, transferred him from the AGR to a mobilized TPU for the purpose of deployment in support of OIF superseding his AGR assignment orders for 545 days.  Permanent Orders (PO) Number 022-205 deployed the 308th QM Company in support of OIF2.  These orders were temporary change of station orders and he remained in the AGR program, in accordance with AR 135-18, paragraph 2-1e, for the duration of these orders.

   d.  At the time of his reenlistment on 24 December 2004 his active duty AGR orders were superseded by reserve deployment orders and his duty status was as a mobilized TPU Soldier in the AGR program.  This required the standard AGR contract and retention control number:  IAI0798 that was issued by the USAR Personnel Command.  The rules used to calculate the ETS date were based on his duty status as a mobilized TPU, not an active duty AGR.  AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 7-2g states the maximum years of service (MYOS) for a sergeant first class (SFC) is 29 years.  It further states, "The MYOS removals are suspended for TPU enlisted Soldiers upon declaration of partial or higher levels mobilization."  With MYOS suspended during the mobilization, Removal Rule #2 was used to calculate the ETS date, which is age 60 for enlisted Soldiers thus giving an ETS date of 3 January 2021.

   e.  When he discussed this with Master Sergeant Ixxxx at the U.S. Army Human Resources Command (HRC), he became evasive and stated, "you apply the active duty rules to a mobilized reservist as stated in AR 140-111 (USAR Reenlistment Program), chapter 8."  This chapter clearly does not address mobilization at all.  When he arrived at his transition point for retirement there was no reference to his service in OIF and his mobilization indicator was indicating "No."

   f.  The reenlistment orders published on 28 November 2004 were required to be in standard format 198.  At the time the orders were published, it was superseded by mobilization Orders Number 33906, dated 4 December 2003, allowing him to be deployed to OIF.  This is what led to the confusion on why the ETS date in his contract did not match the retention control point (RCP) for active duty.  One can only conclude the Army is aware of this type of anomaly in the contracts as the All Army Activities (ALARACT) Message Number 020/2011 and Military Personnel (MILPER) Message 12-119 have made provisions for them.

3.  The applicant provides copies of the following:

* Orders Number R-02-000542
* Orders Number 339-06
* PO Number 022-205
* PO Number 056-201
* Orders Number R-11-478414
* Army Board for Correction of Military Records (ABCMR) ROP

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 ABCMR in Docket Number AR20120011925 on 23 April 2013.

2.  The applicant provided copies of Orders Number R-02-000542, 339-06, and R-11-478414; and PO Numbers 022-205 and 056-201.  This is new evidence that will be considered by the Board.

3.  The applicant enlisted in the USAR on 26 October 1981.  On 17 September 1986, he executed a 1 year, 10 month, and 18 day extension of his USAR enlistment.  His DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows he was in an AGR status at the time of the extension.  He served continuously in an AGR status through a series of extensions and reenlistments.

4.  Orders Number R-02-000542, issued by HRC on 3 February 1999, released him from active duty and discharged him for the purpose of immediate reenlistment in the USAR.  The orders show he was reenlisted and ordered to active duty in an AGR status for 3 years.

5.  He was promoted to SFC/E-7 on 1 June 2002.

6.  Orders Number 339-06, issued by the 89th Regional Readiness Command on 4 December 2003, deployed him in support of OIF not to exceed 545 days with a proceed date of 4 December 2003.

7.  PO Number 022-205, issued by Headquarters, 24th Infantry Division and Fort Riley, KS, on 22 January 2004, assigned personnel to Headquarters, Combined Forces Land Component Command.  His name is listed on the attached list.

8.  PO Number 056-201, dated, 25 February 2004, amended the foregoing orders to include additional personnel.

9.  On 24 November 2004, he reenlisted for an indefinite period.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), Section B (Agreements), states, "I understand that my reenlistment is for an indefinite period of time and I will be allowed to continue in an AGR status until RCP for my current grade, or maximum age, whichever comes first.  The RCP for my current grade or maximum age, whichever comes first is 20210103 [3 January 2021]."

10.  Orders Number R-11-478414, issued by HRC on 26 November 2004, released him from active duty and discharged him for the purpose of immediate reenlistment in the USAR.  The orders show he was reenlisted and ordered to active duty in an AGR status indefinite.  The additional instructions (D) stated, "You will serve to the RCP for your current grade, or maximum age, whichever comes first."

11.  The applicant departed Iraq on 25 February 2005.

12.  Orders Number R-07-577606, issued by HRC 26 July 2005, ordered him to active duty in an AGR status with a report date of 9 January 2006.

13.  On 17 February 2012, he submitted a request for continuation in the AGR program and alignment of his release from active duty date of 30 April 2012 and his ETS date of 3 January 2021.  

14.  On 20 March 2012, he received a 90-day ETS notification from HRC.

15.  In a letter, dated 8 May 2012, HRC advised a Member of Congress that the applicant's reenlistment contract executed on 24 November 2004 contained an erroneous ETS date and that the administrative error caused the applicant to exceed his RCP by over 4 months.  The applicant had an approved retirement date of 31 July 2012 and he was authorized to serve 8 months beyond his RCP in order to meet his approved retirement.

16.  He was retired on 31 July 2012.  He was issued a DD Form 214 crediting him with completing 26 years, 9 months, and 4 days of net active service.

17.  The Soldier Management System, located on the HRC Integrated Web Service, shows his ETS date as 31 July 2012.  

18.  A Chronological Statement of Retirement Points, dated 13 May 2014, shows he was credited with 30 years, 9 months, and 7 days of qualifying service for retirement as of 31 July 2012.

19.  He will reach age 60 on 3 January 2021.

20.  AR 140-111 sets the policies and procedures for the USAR Reenlistment Program.  The regulation states in:

   a.  Paragraph 8-8 - a Soldier serving on AD in an AGR status cannot reenlist or extend for continued service on AGR status with an ETS date that would exceed the RCP for his/her grade by more than 29 days.  Waivers or exceptions to provide for a reenlistment or extension to permit a Soldier to remain on active duty in an AGR status for more than 29 days beyond the Soldier’s RCP are not authorized and will not be considered.

   b.  Table 8-1 – the RCP for an SFC in the AGR program is 24 years.

21.  AR 140-10 sets policies to assign, attach, detail, remove, or transfer USAR Soldiers.  The regulation states in:

   a.  Paragraph 7-2g(1) - Enlisted USAR Soldiers in the rank of SFC will be removed when they have completed 29 years of service.  The MYOS removals are suspended for TPU enlisted Soldiers upon declaration of partial or higher levels of mobilization.

   b.  Paragraph 7-2(5) - Removal from a TPU based on years of service under this paragraph does not apply to Soldiers serving on AD in an AGR status.

   c.  Paragraph 7-3b - Soldiers not sooner removed for another reason will be removed when they reach maximum age.  Maximum age for enlisted Soldiers having 20 or more years of qualifying Federal service is 62 years.

22.  AR 140-111 sets the policies and procedures for the USAR Reenlistment Program.  The regulation states in:

   a.  Paragraph 8-8 - a Soldier serving on AD in an AGR status cannot reenlist or extend for continued service on AGR status with an ETS date that would exceed the RCP for his/her grade by more than 29 days.  Waivers or exceptions to provide for a reenlistment or extension to permit a Soldier to remain on active duty in an AGR status for more than 29 days beyond the Soldier’s RCP are not authorized and will not be considered.

   b.  Table 8-1 – the RCP for an SFC in the AGR program is 24 years.

23.  ALARACT Message Number 020/2011, issued on 25 January 2011, announced changes to RCPs for enlisted Soldiers serving in the Regular Army and in the AGR program.  This message established the RCP for an SFC as 26 years.  Paragraph 8 of the message stated, "Soldier not under the provisions of paragraph 6 and 7 of that message [which pertained to Soldiers serving on an indefinite reenlistment who exceeded their RCP as a result of a reduction in grade] and who would exceed their RCP for their current grade on the effective date of that policy message could serve until his/her current ETS date, if otherwise qualified."

24.  MILPER Message Number 12-119, issued on 26 April 2012, announced the updated procedures for completing a reenlistment contract for AGR Soldiers.  The message established that AGR Soldier would be required to reenlist in the USAR and receive a subsequent AGR tour to remain in the AGR program.  The message was effective immediately and would remain in effect until superseded or rescinded.  Contracts executed prior to the effective date of the message were considered valid.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's new contentions and documentation he provided were carefully considered.  The evidence of record shows on 17 September 1986, he executed an extension of his USAR enlistment in an AGR status.  He served continuously in an AGR status through a series of extensions and reenlistments. He departed Iraq on 25 February 2005, and on 26 July 2005 orders were issued ordering him to active duty in an AGR status.  As such, he was an AGR and not a TPU Soldier.  AR 140-10, paragraph 7-2g(1) does not apply to Soldiers serving on active duty in an AGR status.  The rule applies to what one’s status is at the time of consideration for separation, not what one’s status was when they reenlisted.

2.  On 17 February 2012, he submitted a request for continuation in the AGR program and alignment of his release from active duty date of 30 April 2012 and his ETS date of 3 January 2021.  On 20 March 2012, he received a 90-day ETS notification.  On 8 May 2012, HRC advised a Member of Congress that the applicant's reenlistment contract executed on 24 November 2004 contained an erroneous ETS date and that the administrative error caused the applicant to exceed his RCP by over 4 months.  The applicant had an approved retirement date of 31 July 2012 and he was authorized to serve 8 months beyond his RCP in order to meet his approved retirement.

3.  His DD Form 4, dated 24 November 2004, clearly states he would be allowed to continue in an AGR status until the RCP for his current grade, or maximum age, whichever came first.  As such, the RCP for his current grade came first.  ALARACT Message Number 020/2011 changed the RCP for an SFC from 24 to 26 years.  He was retired on 31 July 2012 and was credited with completing 26 years, 9 months, and 4 days of active service.  

4.  Therefore, it is evident that the entry showing he would be allowed to serve until 3 January 2021, which is the date of his 60th birthday, was entered as a result of an administrative error.

5.  Without evidence to the contrary, he was properly released from the AGR program and retired upon reaching the MYOS allowed for his rank.  Therefore, there is no basis for granting him 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120011925, dated 23 April 2013.



      _______ _  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)                                         AR20140007364





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