PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  5 November 2002
	DOCKET NUMBER:  AR2002074122

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Eric N. Andersen		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he receive the appropriate retirement point credit and pay for unit training he performed in 1998 and that his records be corrected to show that he completed 20 years of qualifying service for retired pay at age 60.  This is also a request, in effect, that his discharge be revoked and that he be transferred to the Retired Reserve.

3.  The applicant states, in effect, that he was not given points or pay for two weekend unit training assemblies that he performed in an authorized rescheduled training (RST) status.  He also was not given points or pay for two weekend unit training assemblies that he performed because he was informed several months later that his performance of duty was unsatisfactory.  He believes that his transfer from his unit to the Individual Ready Reserve (IRR) was illegal and was done without a hearing.  In support of his application he submits copies of his unexcused absence notifications and unsatisfactory performance of duty notifications; his response to the notifications; notification of pending transfer to the IRR, and congressional and Inspector General correspondence.

4.  The applicant’s military records show that he enlisted in the Army Reserve on 26 August 1982 with prior active and Reserve Component service.  He was promoted to the pay grade of E-6 effective 1 April 1990.  At the time of the incidents in question the applicant was assigned to the Phoenix Linguist Team, Company B, 372nd Military Intelligence Battalion.  The company headquarters was located 450 miles away in Oakland, California.

5.  The applicant's records contain a copy of a 1 December 1998 memorandum from the unit commander to the applicant concerning his absence from unit training on 14 and 15 November 1998.  The memorandum also notes that the applicant had now accumulated 12 unexcused absences in the past 12-month period and he had 15 days to respond if the absence was beyond his control.  The return receipt shows that it was delivered on 5 December 1998.

6.  The applicant's records contain a copy of a 9 December 1998 memorandum from the unit commander to the applicant concerning the commander's decision to record the applicant's attendance at unit training on 14 and 15 November 1998 as unexcused absences based on unsatisfactory participation.  This appears to be a correction to the memorandum of 1 December 1998.  The memorandum also notes that the applicant has now accumulated 12 unexcused absences in the past 12-month period and he had 15 days to respond.  The return receipt shows that it was delivered on 15 December 1998.

7.  The applicant's records contain copies of four memorandums, all dated 18 December 1998, from the unit commander to the applicant.  Three of the memorandums concern the applicant's record of unexcused absences from unit training for 4 days in July 1998, 4 days in August 1998, and 4 days in December 1998.  All three memorandums state that the applicant has 15 days from the date of receipt to respond.  The forth memorandum is the unit commander's notification to the applicant of initiation of action to transfer the applicant to the IRR.  This memorandum also states that he may provide a written rebuttal on his behalf but does not provide a suspense date for the rebuttal.  All of the return receipts show the delivery date as 31 December 1998.

8.  The applicant's records contain four copies of General Counseling Forms from the unit commander to the applicant.  Two of the forms are dated 12 August 1998 and are signed by the unit commander.  They provide written counseling to the applicant concerning his absences from unit training in July and August 1998.  The applicant was also informed that his performance in a Rescheduled Training (RST) status for the missed regular training dates was not authorized or approved and he was recorded as receiving unexcused absences for those periods.

9.  The other two counseling forms from the unit commander to the applicant, dated 15 November and 18 December 1998 respectively, inform the applicant that he was recorded with eight unexcused absences for unit training on 14 and 15 November 1998 and 12 and 13 December 1998 for unsatisfactory performance of his assigned duties.  Specifically, he failed to complete an NCO Evaluation Report (NCOER) by the end of the unit training periods.  It appears that the incomplete NCOER was for the same soldier and not two different soldiers.  The four counseling forms show a delivery date on the return receipt of 31 December 1998.

10.  The applicant provides copies of his undated responses to the four memorandums and four counseling statements regarding the unexcused absences recorded for his July, August, November, and December unit training.  He states in his response to the July 1998 unexcused absences that he had contacted his immediate supervisor, a captain, that he was unable to attend the scheduled training for July and he would provide the appropriate document when he completed his RST.

11.  He states in his response to the August 1998 unexcused absences that he had contacted his immediate supervisor, a captain, that he was unable to attend the scheduled training for August and he would provide the appropriate document when he completed his RST.  

12.  The applicant's records contain copies of three Records of Individual Performance of Reserve Duty Training, which show that the applicant performed RST in May, July, and August 1998 in lieu of scheduled training for those months.  All three training periods were performed as a translator, his primary military duty, for the Immigration and Naturalization Service.  It appears that he received points and pay for the May RST but the July RST is annotated that the unit commander disapproved it.  The August RST is not annotated and has an accompanying sheet that states that the RST was approved by his immediate supervisor, a captain.

13.  In the applicant's undated response to the November 1998 unexcused absences, he states that he was not aware or informed that he was the platoon sergeant of his linguist team.  He was not aware of or told to complete an NCOER on one of the team members and was not informed at the completion of unit training that he had failed to complete the required NCOER.  He also states that there is no published rating scheme for any of the soldiers to know who is rating whom.  The applicant's undated response to the December 1998 unexcused absences was similar in nature to the November 1998 unexcused absences.

14.  The applicant's records contain a copy of a 19 April 1998 memorandum from the unit commander, which assigned the applicant the additional duty of platoon sergeant for the Phoenix Detachment effective 14 February 1998.  The records also contain a 13 August 1998 memorandum that assigns the additional duty of platoon sergeant to a different NCO effective 13 August 1998.  Army Regulation 623-205, which provides the policy for preparation of NCOERs, does not provide for the backdating of rater responsibilities and requires the rater of a Troop Program Unit NCO to have been the rater for a minimum of 6 months.

15.  An undated copy of the unit NCOER Rating Scheme shows that the applicant is the rater of one NCO, the same NCO cited in the missing NCOER.  The captain that the applicant says he contacted to obtain permission to RST for the scheduled training in July and August 1998 is listed as his rater.  The document shows that it was printed on 1 December 1998, over 3 months after a different NCO was assigned the additional duty of platoon sergeant.  That NCO is not shown on the document as rating any other NCOs.

16.  Effective 22 January 1999, the applicant was transferred to the IRR as an unsatisfactory participant; 22 days after delivery of his counseling forms for his unexcused absences.  There are no statements concerning the commander's decision on the validity of the applicant's response in the available record.

17.  The applicant provided a copy of a 25 January 1999 letter from the command Inspector General (IG) concerning their inquiry into the applicant's recorded unexcused absences for his unit training in November 1998.  The response appears to expand on the original issue and cites the regulatory requirement for approval of RST.  The letter also explains the commander's authority to not give training attendance credit to a soldier unless the soldier performs the assigned duties in a satisfactory manner.

18.  Effective 12 September 2000, the applicant was discharged from the IRR by reason of completion of required service.  His records show that his expiration of his term of service (ETS) was 14 November 1999.  A recent retirement points inquiry shows that the applicant was credited with 19 years of qualifying service for retirement as of 25 August 1998 and that he was credited with 27 retirement points in his final retirement year.  It also shows that he was credited with more than the minimum required 50 retirement points during most of his qualifying years of service.

19.  The applicant provides copies of Congressional correspondence concerning his unexcused absences and transfer to the IRR.  In a partial copy of a 30 November 2000 letter to a Member of Congress, the Office of the IG, Department of the Army, states that their office conducted an inquiry into those matters and the complaints were not substantiated.  Their inquiry found that the command IG properly handled the applicant's case and a proper response was provided.  Their inquiry also found that the commander was within his authority to transfer the applicant to the IRR based on the recording of nine or more unexcused absences within a 1-year period.

20.  Army Regulation 135-91 provides the policy for Reserve Component participation requirements.  It provides that absences from scheduled training may be excused when sickness, injury, or some other circumstance beyond the soldier's control caused the absence.  At the discretion of the appropriate commander, other training may be scheduled to make up the excused absence.  To receive credit for attendance at scheduled training a soldier must also perform the assigned duties in a satisfactory manner as determined by the unit commander.  Soldiers will be charged with unsatisfactory participation when they accrue nine or more unexcused absences in any 1-year period.

21.  The regulation also provides that the unit commander will inform the soldier in writing after the fourth unexcused absence in a 12-month period and for each succeeding unexcused absence.  A copy of the notification and a copy of the commander's decision statement concerning the validity of the absence will be placed in the soldier's records.

22.  Army Regulation 135-178 provides for the separation of enlisted soldiers.  Chapter 11 states that the separation authority, on ETS, will discharge the soldier.  It also states that a soldier will not be kept past his ETS without his consent or under other operation of law.

23.  Army Regulation 140-10 prescribes the policy and procedures for transfer to the Retired Reserve.  It provides for transfer to the Retired Reserve for soldiers who have completed a minimum of 20 qualifying years for retired pay at age 60.  It also provides that the individual must request transfer to the Retired Reserve in writing or be discharged upon ETS or upon reaching mandatory removal.

CONCLUSIONS:

1.  There is sufficient credible evidence in the record to show that the applicant believed that he had been given permission and performed RST for the missed unit training on 11 and 12 July and 1 and 2 August 1998.  He should be given appropriate retirement point credit and pay for his RST duty, which was approved and performed in the same manner for the RST on 4 and 5 May 1998.

2.  Notwithstanding the correspondence from the command IG and the Department of the Army IG, there is insufficient evidence to show that the applicant was required to prepare an NCOER or that an NCOER could be prepared since the applicant could have been the rater for no more than 5 months, one month short of the required minimum period.  The applicant should be given retirement point credit and pay for unit training performed on 14 and 15 November and 12 and 13 December 1998.  With the addition of the above 16 retirement points, the applicant now has 43 retirement points for the retirement year ending on 25 August 1999.

3.  The command failed to follow the regularity requirements in providing timely notification to the applicant on the recording of his unexcused absences or providing him an opportunity to respond in a timely manner to resolve the unexcused absences prior to his transfer to the IRR for unsatisfactory participation.  It would be appropriate to amend the applicant's order for transfer to the IRR to show the reason for transfer as voluntary.

4.  The applicant has sufficient excess retirement points that can be redistributed to his unqualifying retirement year ending on 25 August 1999.  This redistribution of seven points would not involve awarding additional retirement points, entitlement to additional drill pay, or adding an additional period of service.  The result of this action would provide the applicant with 20 years of qualifying service for retirement and entitlement to notification of 20 years of qualifying service for retirement at age 60 (20-year letter).

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:

	a.  providing the applicant the appropriate retirement points and pay for the performance of RST on 11 and 12 July and 1 and 2 August 1998;

	b.  providing the applicant the appropriate retirement points and pay for the performance of unit training on 14 and 15 November and 12 and 13 December 1998;

	c.  amending the order that transferred the applicant to the IRR effective 22 January 1999 to show the reason as voluntary;

	d.  redistributing sufficient excess retirement points to his unqualifying retirement year ending on 25 August 1999 to show that he obtained 50 retirement points and is a qualifying year for retirement at age 60; and

	e.  providing the applicant a notification of eligibility for retired pay at age 60 with the opportunity to apply for survivor benefits.

BOARD VOTE:  

__mm___  ___jm___  __ea___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Melvin H. Meyer____
		        CHAIRPERSON

INDEX

CASE ID	AR2002074122	
SUFFIX		
RECON		
DATE BOARDED	20021105	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	100.07	
2.	110.02	
3.	128.00	
4.	135.02	
5.	136.04	
6.