APPLICANT REQUESTS:  In effect, that he be reinstated into the Active/Guard Reserve (AGR) program or that his separation be determined to be involuntary and he be authorized separation pay.

APPLICANT STATES:  That his release from active service was involuntary, not voluntary; that the decision not to retain him on active service and retrain him was not within regulatory guidance; and that the denial of separation pay at the time of his involuntary release was unlawful.

EVIDENCE OF RECORD:  The applicant’s military records show:

He enlisted in the U. S. Army Reserve on 16 December 1980.  He was ordered to initial active duty for training to attend advanced individual training and was awarded military occupational specialty 96B (Intelligence Analyst).

On 6 October 1986, he was voluntarily ordered to active duty in the AGR program and was assigned to Headquarters and Headquarters Company, 11th Special Forces Group at Fort Meade, MD.  He was promoted to Sergeant First Class on 1 September 1991.

His unit was scheduled for inactivation effective 15 September 1994.  On          21 June 1994, orders were published reassigning him to the 383d Military Intelligence (MI) Company, Hanscom Air Force Base, MA with a report date of 26 September 1994.

On or about 29 August 1994, the applicant was detailed to work on the Cuba Task Force, Office of the Secretary of Defense, the Pentagon, for 110 days.  Orders were published changing his report date to the 383d MI Company to        9 January 1995.

On 14 November 1994, the applicant requested deferment of his report date to August 1995 due to his being a single parent of two daughters.  He needed the time to establish a mechanism for their care and support and allow them to complete the current school year.  The 94th Army Reserve Command disapproved his request.

On 28 December 1994, the applicant submitted a request for personnel action wherein he stated he did not desire another AGR tour and requested voluntary separation at the completion of his current tour on 18 September 1995.  He also requested that his current assignment orders to the 383d MI Company be voided.
On 24 June 1995, the applicant requested reenlistment in the AGR program and revocation of the orders separating him from the service.  He stated he was willing to be reclassified to continue in the program.

On 26 July 1995, the Full Time Support Management Center, Army Reserve Personnel Center, denied his request to withdraw his voluntary separation.

On 15 August 1995, the applicant requested assistance from the U. S. Army Special Operations Command Inspector General’s (IG) office to look into his reassignment, separation and disapproval of reenlistment actions.  He apparently also contacted other IG offices at this time.

On 30 August 1995, the applicant was notified that his sensitive compartmented information (SCI) eligibility and collateral security clearance had been         denied/ revoked, respectively.  (This action was taken based upon his fraudulent use of a government credit card.)

On 15 September 1995, the applicant was granted a 1 month extension to enable him to exhaust his accrued leave that he could not sell back and to enable the U. S. Army Reserve Command IG to complete their inquiry.

On 28 September 1995, the Assistant IG, U. S. Army Reserve Command completed his investigation.  He determined that the applicant requested voluntary separation when his request for a deferred report date until August 1995 to his new assignment was denied.  He later requested withdrawal of his voluntary separation which the Full Time Support Management Center disapproved because no positions were available at the time.

On 11 October 1995, the Full Time Support Management Center replied to the applicant in response to his inquiry to the Chief, Army Reserve regarding his current request to reenlist for continuation on AGR active duty.  That office informed him that he was ineligible to reenlist because, as the pertinent regulation states:  “A soldier scheduled for a permanent change of station (PCS) having 1 year or less remaining on his or her current enlistment or reenlistment agreement must immediately reenlist for at least 3 years prior to the PCS…Should the soldier decline reenlistment, the PCS will be canceled and the soldier will be discharged or released from active duty, as appropriate, at the expiration date of the current enlistment or reenlistment agreement.”  On             7 September 1994, they had notified him he needed to reenlist prior to his report date to his new unit since he had less than one year between his report date and his expiration of term of service.  The applicant then notified them on                28 December 1994 that he declined to reenlist to accept the reassignment.

On 18 October 1995, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 5, voluntary early release in the best interest of the government.  He had completed 9 years, 4 months and 13 days of creditable active service and had no lost time.  

On 23 October 1995, the U. S. Army Reserve Command IG formally closed the applicant’s case.

Army Regulation 140-30 prescribes the policy and procedures for the administration of the AGR Program.  Chapter 4 of that regulation states that assignments will be based on the needs of the Army with consideration given to AGR program requirements, position qualifications and successive attachments to positions of increased responsibility.  

Army Regulation 600-20 provides that soldiers must arrange for the care of their family members so as to be available for duty when and where the needs of the Service dictate.  Single parents of all active duty and Reserve Components who have physical and legal custody of one or more children under age 18 must be counseled using the Family Care Counseling Checklist and affirm that they have made and will maintain arrangements for the care of family members in all circumstances required by his/her commitment to the Military Service.

Title 10, section 1174, U.S. Code authorizes separation pay for other than a regular enlisted member who is discharged and who has completed six or more, but fewer than 20, years of active service if the member’s discharge is involuntary or the member was not accepted for an additional tour of active duty for which he volunteered.

On 28 August 1998, the Army Discharge Review Board (ADRB) denied the applicant’s request for reinstatement.

DISCUSSION:  Considering all the evidence, allegations and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  As a single parent, the applicant should have been counseled and subsequently signed a statement affirming that he had made arrangements, and maintained those arrangements, for the care of his family members in all circumstances required by his commitment to the military.  This would include a PCS to a non-active duty stateside installation. Even if he had not been formally counseled and/or signed such a statement, as a senior non-commissioned officer he should have known that family arrangements must be made to cover just such contingencies.

3.  The applicant requested voluntary separation because he felt his ordered PCS due to the inactivation of his current unit would not be in the best interests of his children.  His request was approved and, based upon this and his concurrent decision not to reenlist to accept the assignment, his reassignment orders were revoked.  

4.  When the applicant requested reenlistment and continuation in the AGR program 6 months later, he was not qualified for an additional tour of active duty because he was not eligible for reenlistment due to the fact he had previously declined to reenlistment to accept a PCS.  This change of mind on the applicant’s part does not change his voluntary separation to an involuntary separation.  Thus, he was not and is not eligible for separation pay.

5.  In view of the foregoing, there appears to be no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                              				Loren G. Harrell
					 	Director