IN THE CASE OF:  	  

		BOARD DATE:  7 July 2015  	  

		DOCKET NUMBER:  AR20140018420 


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 his records to show he did not receive an "unsatisfactory" while serving in the U.S. Army Reserve (USAR).

2.  The applicant states:

   a.  He has an "unsatisfactory" on his record which is not allowing him to obtain his kicker bonus for education benefits through the Department of Veteran Affairs (VA).  This was an error when the USAR unit administrator marked him as being in an unsatisfactory status when he should have been in a nonparticipation status while he was waiting on his medical discharge.  His commander supports this issue and his Reserve orders indicate this as well.

	b.  He had all honorable USAR service and was in good standing in all the units he was assigned to.  He received seven Army Achievement Medals and held the rank/grade of sergeant (SGT)/E-5.  At no time was he ever notified that he was being marked as being in an unsatisfactory status through mail or in his records.  The error was due to the laziness of the unit administrator and he is now barred from benefits that he earned. 

3.  The applicant provides orders and a statement of support.

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 on 24 June 2003.  He was assigned to the 243rd Trailer Transfer Point (TTP) Transportation Detachment, Belleville, IL.  

3.  Having had prior active service while a member of the USAR, he entered active duty for training (ADT) on 16 January 2007.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 May 2007.  He was honorably released from ADT on 15 January 2008 in the rank of SGT to the control of the USAR.

4.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows, in part, award of the Army Achievement Medal (4th Award), Army Good Conduct Medal, and the Iraq Campaign Medal.

5.  In April 2004, he received a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), an annual NCOER, for the rated period 12 January 2008 through 11 January 2009.  His rater was Staff Sergeant TT, the detachment first sergeant (1SG) and his senior rater was Captain WF, the detachment commander.  His rater rated him as "among the best" and his senior rater rated his overall potential for promotion as "superior."

6.  The applicant provides Orders 10-277-00007, dated 4 October 2010, issued by Headquarters, 88th Regional Support Command, wherein it shows he was honorably discharged from the USAR in the rank of SGT effective 3 November 2010.

7.  His record is void of any derogatory information, counselings, and correspondence from his chain of command for any unexcused absences from unit training.

8.  A review of the applicant's interactive Personnel Electronic Records Management System (iPERMS) file in the Soldier Management System (SMS) shows next to the statement Montgomery GI Bill (MGIB) Eligible Status Reserve Component (RC) an entry was added that stated -eligibility suspended-awaiting final determination of unsatisfactory participation/performance (emphasis added).

9.  The applicant provides a statement of support, dated 10 October 2014, wherein now Major WF stated, the applicant was a member of the 243rd TTP Detachment, USAR, Belleville, in which he had been the commander from October 2008 through July 2010.  During the last 6 months of Fiscal Year 2010 (FY10), the applicant was in the process of separating from the USAR due to injuries he received during his tour in Iraq.  He received an unsatisfactory participation for weekend drill for his last 6 months; however, the rating he should have received was non-participation due to his pending separation due to the injuries he received in Iraq.  During his last 6 months in the USAR, the applicant was receiving disability compensation through the VA. 

10.  His Chronological Statement of Retirement Points, dated 2 June 2015, shows for the period 24 June to 3 November 2010 he was credited with 5 membership points.

11.  Army Regulation 135-91 (Army National Guard and USAR - Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), states, in part: 

	a.  Removal or retention of medically disqualified USAR Soldiers depends on the period medically disqualified.  When medical disqualifications can be corrected within 6 months, retain the Soldier in the unit.  Excused absence from unit training will be granted for medically disqualified Soldiers.

	b.  A Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled inactive duty training occur during a 1-year period.   Unit commanders will properly document the unexcused absence in the Soldier's official military personnel file (OMPF) and deliver a letter of instruction for the unexcused absence either in person or by certified mail.  Action will be taken to process the Soldier for discharge if the notification is refused, unclaimed, or otherwise undeliverable; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of any derogatory information, correspondence for any unexcused absences, and he was honorably discharged from the USAR on 3 November 2010 in the rank of SGT.  As verified by his then immediate commander, he should have received non-participation ratings during his last 6 months of service in the USAR as he was pending separation for injuries received in Iraq. 

2.  It appears an error occurred when an entry was made and then retained in his SMS file that his MGIB eligibility was suspended while awaiting final determination of his unsatisfactory participation or performance.  In accordance with governing regulations, he should have been received excused absences from unit training if he was medically disqualified for the last 6 months of his service.  Therefore, it would be appropriate to grant him the requested relief.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting the entry in his SMS file that states his MGIB eligibility status was eligibility suspended awaiting final determination of his unsatisfactory participation/performance
* showing he was eligible for the MGIB if he is otherwise entitled to the MGIB



      ____________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)                                         AR20140018420





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ABCMR Record of Proceedings (cont)                                         AR20140018420



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