IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003857 


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 to revoke his November 2009 U.S. Army Reserve (USAR) discharge orders and transfer him to the Retired Reserve.

2.  The applicant states his anxiety disorder affected his decision process which caused him to procrastinate and delay having his records changed.  The inability to communicate with someone who could change his orders placed him under stress.  The unit he was assigned to in Phoenix, AZ, was not the unit who cut the orders for his release so they were unable to assist him.  The responsibility was passed, not to his last unit in French Camp, CA, but to the active duty unit in Fort Jackson, SC, where he was deployed for 3 years.  After trying and failing to contact someone who could help him, his anxiety disorder kicked in and he just gave up trying to have his orders corrected.

3.  The applicant provides a letter from his therapist.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140006804, on 30 December 2014.

2.  The applicant provides a letter from his therapist.  The argument contained in the letter was not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant was born in November 1965.  He will turn 60 years of age in November 2025.

4.  The applicant enlisted in the Regular Army on 4 November 1987.  He completed training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was honorably released from active duty on         3 November 1989, upon the expiration of his term of service.  

5.  He enlisted in the USAR in the rank/grade of specialist/E-4 on 22 December 1989.  He served through multiple periods of extension and/or reenlistment and attained the rank/grade of sergeant first class (SFC)/E-7.  

6.  On 21 January 2006, 104th Division (Institutional Training) published orders ordering him to active duty as a member of his Reserve unit in support of Operation Enduring Freedom (OEF), for a period of 365 days.  The order was subsequently amended to 730 days.  

7.  On 12 February 2008, the U.S. Army Human Resources Command (HRC) published Orders A-02-802678, which ordered him to Active Duty for Operational Support in support of OEF, effective 22 February 2008, for a period of 11 months and 30 days including accumulated leave terminating on 20 February 2009.  

8.  He was honorably released from active duty on 20 February 2009 and transferred to the Detachment 3, 2nd Battalion, 415th Regiment, French Camp, CA, a troop program unit (TPU) of the USAR.  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he completed 2 years, 11 months, and 29 days of net active service during this period.

9.  On 25 March 2009, Headquarters, 108th Training Command (Initial Entry Training), Charlotte, NC, published Orders 09-084-00005, which reassigned him from one TPU (2nd Battalion, 415th Regiment) to another (1st Battalion, 415th Regiment, Phoenix, AZ), effective 21 February 2009. 

10.  His last reenlistment contract was executed on 3 November 2002, for a        6-year term.  The expiration of his term of service was set as 2 November 2008. There is no indication he reenlisted or extended his reenlistment in the USAR beyond that date.  Likewise, there is no indication he requested transfer to the Retired Reserve. 

11.  On 27 October 2009, Headquarters, 108th Training Command (Initial Entry Training), Charlotte, NC, published Orders 09-300-00028, which honorably discharged him from the USAR effective 2 November 2009, in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).  The orders state he was held beyond his normal discharge date through no fault of his own. 

12.  On 3 December 2009, HRC issued him his 20-Year Letter.  This letter informed him he had completed the required years of qualifying service and would be eligible for retired pay upon application at age 60. 

13.  His AHRC Form 249-E (Chronological Statement of Retired Points) shows he completed 20 qualifying years of service. 

14.  The HRC Integrated Web Services (IWS) database contains retirement management notes which show on 7 June 2011, the applicant inquired with HRC in reference to retirement.  He was informed in order to transfer to the Retired Reserve he needed to send a request to HRC's Personnel Action Branch stating he wanted to transfer to the Retired Reserve.  There is no evidence to date that he has made such a request. 

15.  The applicant provides a copy of a letter, authored by his therapist, dated      18 February 2015, in which he states the applicant was seen by him in psychotherapy between May and December 2013.  He was suffering from an anxiety disorder characterized by avoidance and procrastination.  He believes this could have affected the applicant's ability to stay on top of his benefits and the paperwork involved in his retirement.  He believes the applicant should be given his full retirement benefits as they are required for his further treatment. 

16.  Army Regulation 135-178 prescribes policies and procedures for the separation of USAR enlisted Soldiers.  It states an enlisted Soldier will be discharged when his removal is required by Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) unless he is eligible for a transfer to an active status or is eligible for and applies for a transfer to the Retired Reserve.

17.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states in pertinent part that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  

18.  The presumption of administrative regularity in the conduct of governmental affairs can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 (ABCMR) which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his previous request to revoke his November 2009, USAR discharge orders and transfer him to the Retired Reserve has been carefully reexamined.

2.  The applicant provided a letter from a therapist who stated the applicant was seen by him in psychotherapy between May and December 2013, and that the applicant suffered from an anxiety disorder characterized by avoidance and procrastination.  However, based on the available evidence, it appears he was diagnosed with anxiety disorder over 3 years after his discharge from the USAR. 

3.  The HRC IWS database shows that on 7 June 2011, the applicant contacted a member of the HRC Retirement Management Office and inquired about his retirement.  He was informed that he needed to send a request to HRC's Personnel Action Branch stating that he wanted to transfer to the Retired Reserve.  There is no evidence to date which shows he ever made such a request.

4.  In the absence of documentation indicating his desire to be transferred to the Retired Reserve at the time of his discharge, the presumption of regularity must apply. 

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 AR20140006804, dated 30 December 2014.



      _______ _   _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)                                         AR20150003857



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ABCMR Record of Proceedings (cont)                                         AR20150003857



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