BOARD DATE:  15 October 2015

		DOCKET NUMBER:  AR20150003002 


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 removal of Headquarters, 84th Division (Institutional Training) Orders 259-20, dated 15 September 1996, from his Official Military Personnel File (OMPF). 

2.  The applicant states that:

   a.  When he was released from active duty (REFRAD) he requested to be transferred to the Individual Ready Reserve (IRR).  He was informed by his chain of command that he could do that. 

   b.  He was never counseled or contacted until he received the orders releasing him from his U.S. Army Reserve (USAR) unit due to unsatisfactory participation.  Unfortunately, at the time he did not read the orders and just filed it with the rest of his personal military records.
   
   c.  It was not until his application for the Active Guard Reserve (AGR) program was denied that he knew about the unsatisfactory participation order.  He understands that every Soldier is responsible for his own career, but he was not given any notification that he was being considered for separation due to unsatisfactory participation.

3.  The applicant provides:

* Orders 259-20
* four memoranda 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 is currently an active member of the USAR serving as a staff sergeant/pay grade E-6.  He initially enlisted in the USAR Delayed Entry Program (DEP) on 10 December 1991.  He was discharged from the DEP and enlisted in the Regular Army on 24 March 1992 for a period of 3 years and 14 weeks.  

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was REFRAD on 1 July 1995 and transferred to Company D, 2nd Battalion, 84th Regiment (USAR), Rockford, Illinois.  

4.  A DA Form 7249-R (Annex A, Certificate and Acknowledgement of Service Requirements of Fulfillment for Individuals Enlisting or Transferring into Troop Program Units (TPU) of the Army National Guard/USAR upon REFRAD/Discharge from Active Army Service) shows the applicant:

	a.  Initialed the block indicating "Transfer to a Troop Program Unit of the U.S. Army Reserve."  It states, "This requires that you report to the assigned unit within 30 days following release from active duty and continue satisfactory participation in the Ready Reserve for the remaining period of service on your current statutory obligation."

	b.  Section V (Additions or Changes to This Certificate) shows he initialed the block indicating that the addendum was completed and signed by the Soldier.  His name and signature are shown with the date of 27 April 1995.

	c.  Section VII (Certification by Officer or Transition Counselor) shows the name and signature of Master Sergeant J____ L. J______, dated 27 April 1997.

	d.  He was assigned to Company D, 2nd Battalion, 84th Regiment (USAR), Rockford, Illinois.  He was authorized an affiliation bonus.  In item 6 he initialed indicating that, "I certify that I have been counseled that the effective date of my TRANSFER/ENLISTMENT is the day after my release from active duty.  I understand that my contract will be voided if I reenlist or extend in the Regular Army or if I become ineligible for TRANSFER/ENLISTMENT on or before my transition date:  1 July 1995." 

5.  An undated first endorsement from the Commander, 10th Mountain Division, Fort Drum, New York, addressed to the applicant at Headquarters and Headquarters Company, 2nd Battalion, 22nd Infantry, Fort Drum, NY, shows Orders 104-1015, Headquarters, 10th Mountain Division, dated 14 April 1995, were amended to show the applicant was assigned to Company D, 2nd Battalion, 84th Regiment, Rockford IL.  Additional instructions show he was required to report to his new unit within 30 days of his REFRAD. 

6.  The applicant reported to his USAR unit and performed active duty training from 8 - 23 September 1995 in accordance with Order 137-070, dated 22 August 1995, issued by 84th Division (Institutional Training).

7.  On 15 September 1996 the applicant was transferred to the USAR Control Group (Reinforcement) by Orders 259-20.  The reason for his transfer was unsatisfactory participation under the provisions of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraphs 1-5b and 4-15.

8.  On 4 November 2001 the applicant enlisted in the USAR for a period of 3 years in the rank of sergeant/pay grade E-5.

9.  In support of his application the applicant provides memoranda of support from:

	a.  First Sergeant K____ F. M_____, who states he has known the applicant since 4 November 2011.  He is a strong advocate of the applicant's efforts to enter the AGR program.  He believes that the characterization of the applicant's transfer (unsatisfactory participation) must have been the result of an error or mismanagement of the personnel action on the part of the losing unit.

	b.  Major E____ L. M____, who states he has known and served with the applicant for over 20 years.  After leaving active duty, the applicant joined the USAR intending to continue his Army career.  He joined a drill sergeant training company and made a great impression upon the leadership.  They wanted to get him fully qualified so they began to send him to various schools.  This was putting too many demands on his family and his civilian job that he had just started.  He requested transfer to the IRR.  His commander and first sergeant (1SG) both agreed and said they would transfer him.  Instead, they put him out as an unsatisfactory participant.  They gave him no counseling of the impending transfer.  It is a travesty that improper procedures and paperwork of an incompetent former command is preventing him from joining the AGR program.  He recommends the unsatisfactory participation order be removed from the applicant's records. 

	c.  Chief Warrant Officer Two A______ G. Q_______, Jr., who is the applicant's commander in Kuwait states that the unsatisfactory participation orders in the applicant's OMPF were unknowingly submitted without proper review or notification.  The applicant's previous commander and 1SG agreed to allow him to leave the unit and return to the IRR.  They told him they would transfer him to the IRR without issues, but instead he was administratively transferred as an unsatisfactory participant.  The applicant received no counseling or notification of the impending separation and was not even given the opportunity to finish out his obligation to the USAR.  The applicant has demonstrated and proven his ability as a valued team member, section sergeant, and leader of Soldiers in any given situation.  He would definitely be an invaluable asset to his future units and the Army.  

	d.  First Lieutenant E____ J. M______, who states that the applicant is an outstanding Soldier; a veteran who served in Haiti in 1994, and is currently serving in Kuwait and Iraq as part of the 826th Ordnance Company.  He has proven his mettle as a trusted and valuable asset to the organization.  During a records review the applicant expressed that he had no recollection of being properly notified that he was being declared an unsatisfactory participant.  There is no record of the applicant having received any unexcused absence notifications or failing to attend scheduled unit annual training.  Recently the applicant attempted to submit an application for selection into the AGR program.  Due to the filing of the unsatisfactory participation IRR transfer order, his packet would not be considered.  He recommends the transfer order be changed to a non-derogatory code to maximize the potential and continued service of an outstanding personnel asset to the organization and the Army.

10.  Army Regulation 140-10, in effect at the time, prescribed policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Paragraph 4-15a (Involuntary Reassignment for Unsatisfactory Participation) provides that a TPU or individual mobilization augmentee (IMA) Soldier who has completed advanced individual training and been awarded a military occupational specialty and is not within 3 months of his expiration of term of service, who fails to participate satisfactorily per Army Regulation 135–91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), chapter 4, section III, may be reassigned to the appropriate control group of the IRR.  Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings per Army Regulation 135–178 (Enlisted Personnel Management), chapter 13, when determined to be in the best interest of the Army.  Commanders will not take reassignment action under this paragraph solely to spare a soldier from administrative separation proceedings for other than unsatisfactory participation. 

11.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.  

   a.  Only those documents listed in the "Documents Required for Filing" are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  Performance, Service, or Restricted.

   b.  The OMPF document list shows the notification order for unsatisfactory participation is permanently filed in the Service folder of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the reassignment orders showing his unsatisfactory participation should be removed from his OMPF because the orders are erroneous and hindered his entrance into the AGR program.

2.  The available evidence shows the applicant requested transfer to a TPU unit in conjunction with his REFRAD in April 1995.  He was reassigned to Company D, 2nd Battalion, 84th Regiment, Rockford, IL, and scheduled to report within 30 days of his 1 July 1995 REFRAD.  His initials on the DA Form 7429-R indicate he understood his reassignment and the responsibility to report to the TPU unit and continue satisfactory participation in the Ready Reserve for the remaining period of his statutory obligation.  

3.  He apparently failed to fulfill his obligation to participate with his TPU unit. Subject orders reassigned him to the USAR Control Group (Reinforcement) due to his unsatisfactory participation.  

4.  He did not provide convincing evidence showing the unsatisfactory participation orders are erroneous.  While the laudatory memoranda are noted, they show his current military duty performance and professionalism are outstanding.  None of the writers show they were in his chain of command in 1996 when he was transferred as an unsatisfactory participant to the IRR.

5.  The evidence shows reassignment orders for unsatisfactory participation are authorized to be filed in the OMPF and his orders are correctly filed in the Service folder of his OMPF.

6.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  No such evidence has been provided in this case.  Therefore, the document in question should not be removed from the applicant's OMPF.

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 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)                                         AR20140019707



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ABCMR Record of Proceedings (cont)                                         AR20150003002



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