IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150006063 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 request reinstatement into the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) program. 2. The applicant states, in effect, the following: a. In July 2010, his commander asked him if he wanted to reenlist in recruiting or get out of the Army. He asked if he could transfer back into the retention field as a career counselor, since he had already submitted his request to transfer back into the Army Reserve Careers Division (ARCD). His commander stated his only choices were recruiting or get out (presumed to mean get out of the AGR program). b. He elected REFRAD (release from active duty) on 19 August 2010; he was later assigned to the ARCD as an Accession Career Counselor. c. He submitted an AGR application every year since his REFRAD and was not considered for different reasons that were incorrect. He was finally put on the consideration list for Fiscal Year (FY) 2013. He contacted HRC to make sure everything was good, since he was concerned about the 55-year age requirement. d. He requested an exception to policy to the age requirement and to be reinstated back into the AGR program. 3. The applicant provides the following additional evidence in support of his request: * a 4-page self-authored letter of explanation * a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty * two emails from U.S. Army Human Resources Command (HRC), dated 30 October 2013 and 29 December 2014 respectively * a letter from the HRC Office of the Inspector General to the applicant, dated 30 April 2014 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. Having prior service in the Regular Army, USAR, and Army National Guard, the applicant again enlisted in the USAR on 8 January 2005 in the rank/grade of staff sergeant (SSG)/E-6. 3. He was promoted to sergeant first class (SFC) on 1 October 2006. 4. He was ordered to active duty on 20 August 2007 in an AGR status for a period of 3 years and was assigned to the U.S. Army Recruiting Battalion (USARB) – Baltimore. On the same date, he was awarded military occupational specialty 79R (Recruiter). 5. Orders R-06-984397, issued by HRC on 18 June 2009, assigned him to the USARB – Seattle, effective 31 August 2009. 6. Orders C-07-090494, issued by HRC on 27 July 2010, released him from active duty and assigned him to the USAR Control Group (Reinforcement), effective 19 August 2010. 7. The DD Form 214 he was issued shows he was honorably released from active duty by reason of completion of required active service and transferred to the USAR Control Group (Reinforcement) on 19 August 2010. He completed 3 years of net active service this period. 8. Order C-10-014009, issued by HRC on 4 October 2010, released him from the USAR Control Group (Reinforcement) and assigned him to the Support Element, ARCD, Office of the Chief, Army Reserve (OCAR), effective 1 October 2010 with an expiration of term of service (ETS) date of 31 July 2015. 9. He provides an email from Enlisted Personnel Management Division (EPMD) Accessions Branch, HRC, dated 30 October 2013, subject: Notification Enlisted AGR FY14 October Panel Results. This email contains the following information: Our records indicate that we recently sent you an email "in error" that stated: "You did "not" meet the grade or specialty requirement IAW AR 135-18, table 2-1, Rule F." Based on our review, you "do" meet the grade/specialty requirement. Also, you will remain on the Consideration List and eligible for the AGR program until April 2014. However, you will be required to submit another application for our March 2014 Panel. Reason: The next Enlisted AGR Panel date will "not" convene before your eligibility for the AGR program expires. Please view our website for the submission deadline date. 10. His record indicates he submitted an AHRC Form 2370-R (Application for USAR Active Guard Reserve (AGR) Duty), along with AHRC Form 2370-1-R (AGR Selection Eligibility Checklist), and a DA Form 5646 (Statement of Conditions of Service-AGR), which he signed and dated on 9 February 2014. 11. AHRC Form 2370-1-R, Question 9 of the checklist stated, "Are you at least 18 years of age and have not reached your 55th birthday? (enlisted only) (AR 135-18, Table 2-1, rule B)." He checked the "Yes" box under the column labeled "Eligible," meaning he was eligible for the program in relation to that question. His record indicates his birthdate is 9 August 1958. On 9 February 2014, the applicant was 55 years and 6 months old. 12. In connection with the processing of this case, an advisory opinion was requested from HRC. The Deputy, Operations Management Division, HRC, sent as the advisory opinion their response to a congressional inquiry the applicant made to his U.S. Senator. This response, dated 8 July 2014, opined, in pertinent parts, the following: a. Reference to your inquiry on behalf of (applicant), regarding his non-selection for the AGR program. b. Regretfully, HRC could not favorably consider (applicant's) request for accession into the AGR program as he does not fall within the age constraints for the program in accordance with Army regulation. That said, (applicant) was aware he did not meet the qualification and falsified his application; therefore, his application was disapproved. 13. It is presumed that the applicant was notified of his non-selection into the AGR program as a result of him filing an inquiry with a Member of Congress. 14. The applicant was provided a copy of the advisory opinion on 17 July 2015, for information and to allow him the opportunity to submit comments or a rebuttal. However, he did not respond. 15. Orders 14-304-00046, issued by Headquarters, 88th Regional Support Command, Fort McCoy, Wisconsin on 31 October 2014, released him from his current assignment by reason of cogent personal reasons and assigned him to USAR Control Group (Reinforcement) effective 30 November 2014. 16. The applicant submitted the following in support of his request. a. An email from him to EPMD Accessions Branch, dated 29 December 2014, asking for reinstatement into the AGR program. He stated he was a former AGR member prior to 2010. He received a response back the next day, stating that he did not meet the eligibility requirements for consideration for the program and therefore was ineligible for consideration into the program. b. A letter from HRC, Office of the Inspector General, dated 30 April 2014, wherein it addressed his inquiry about documentation that was considered unsatisfactory in his official military personnel file (OMPF). The inquiry revealed no derogatory information was found in his file and that his AGR accession process was reviewed. The letter stated he had reached the maximum age for accession (55 years) and recommended he appeal to this Board. 17. Army Regulation 135-18 (The Active Guard Reserve (AGR) Program) prescribes the policy and procedures for the administration of the AGR Program. It provides Army policy for the selection, utilization, and administration of Army National Guard (ARNG) and USAR Soldiers ordered to active duty. The objective of the AGR Program is to provide highly qualified officers, warrant officers, and enlisted Soldiers to meet the full-time support requirements for ARNG and USAR projects and programs. This regulation states, in pertinent part, that the initial tour of AGR duty is 3 years. 18. Chapter 2 of Army Regulation 135-18 provides the eligibility requirements and qualifications of entry into the AGR Program. a. Paragraph 2-1 (Qualifications for entry in the AGR Program) states for initial entry in the AGR Program, an applicant must possess the qualifications prescribed in table 2-1, not be disqualified under tables 2-2 or 2-3, and meet any additional requirements prescribed by the CNGB (Chief, National Guard Bureau) or the CAR (Chief, Amy Reserve). b. An applicant, following a break in AGR status of two or more calendar day, must possess the qualifications prescribed in table 2-1, not be disqualified under tables 2-2 or 2-3, and meet any additional requirements prescribed by the CNGB or CAR for subsequent reentry into the AGR program. c. Initial entry, or subsequent reentry following a break in AGR status, will be denied if the applicant is disqualified under table 2-2, unless the disqualification is waived by the appropriate authority. d. Initial entry, or subsequent reentry following a break in AGR status, will be denied if the applicant has a nonwaivable disqualification under table 2-3. Waiver request will not be considered (emphasis added). e. Table 2-1 outlines qualifications for entry in the AGR program. Rule B (Age) states that an enlisted Soldier must be 18 years of age and not have reached his or her 55th birthday . f. Table 2-3 outlines nonwaivable disqualifications for entry in the AGR program. Rule B states an enlisted Soldier and does not meet the age requirements of table 2-1, rule B. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for reinstatement into the AGR program was carefully considered. 2. The evidence of record shows the applicant was in the AGR program for 3 years until he was assigned to the USAR Control Group on 19 August 2010. 3. He submitted an application for AGR duty on 9 February 2014 along with a selection eligibility checklist verifying he was eligible for the program by addressing the program's criteria through a lists of questions. Question 9 on AHRC Form 2370-1-R, stated, "Are you at least 18 years of age and have not reached your 55th birthday?" He checked the "Yes" box under the column labeled "Eligible," indicating he meet that criteria and certified it which his signature. 4. The applicant's record indicates his birthday is 9 August 1958. He signed his application on 9 February 2014. At this point he had already reached and passed his 55th birthday. Per the advisory opinion, his application was disapproved for failing to meet the age requirements and, in essence, falsifying his application. 5. The applicable Army regulation states the age requirement for initial entry or subsequent reentry following a break in AGR status is a nonwaivable disqualification and waiver requests will not be considered. 6. There appears to be no error or injustice since the applicant was over 55 years of age when he submitted his application. Consequently, an exception to policy cannot be granted reversing an established nonwaivable requirement. 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) AR20090010980 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006063 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1