BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001085 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001085 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001085 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 correction of the narrative reason for separation from "Weight Control Failure" to "Retired Reserve." 2. The applicant states he should be placed in Retired Reserve or Retired list due to receipt of points correction, and receipt of Army Reserve Retirement letter after serving over 22 years of reserve service of which over 18 were in performance of active duty after discharge. He wants a change to the reason for separation. 3. The applicant provides: * 1999 DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2014 DD Form 214 * DA Form 638 (Recommendation for Award) * 2015 Notification of Eligibility for Retired pay at Age 60 (20-Year Letter) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 10 July 1992 and he held military occupational specialties (MOS) 95C (Military Police) and 77F (Petroleum Supply Specialist). 2. He was honorably released from active duty on 30 May 1999 and he was transferred to a troop program unit of the U.S. Army Reserve (USAR). His DD Form 214 shows he completed 6 years, 10 months, and 21 days of active service. 3. He enlisted in the USAR on 19 April 1999. He entered active duty in the Active Guard Reserve (AGR) program on 13 July 2007. 4. He then served through multiple reenlistments in the USAR, the last of which was an indefinite reenlistment executed on 1 August 2006. He was promoted to sergeant first class (SFC)/E-7 and held MOS 27D (Paralegal Specialist). 5. On 12 June 2011, following a history of exceeding weight control standards, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 16 of Army Regulation (AR) 135-178 (Enlisted Administrative Separations) for weight control failure. 6. On 5 October 2011, he acknowledged receipt of the notification and consulted with counsel who advised him of his rights. He requested a hearing and counsel to represent him at the hearing. 7. On 11 January 2013, the applicant's counsel submitted a request for a conditional waiver and a 12-month suspension of the separation recommendation. On 13 February 2013, the separation authority approved the conditional waiver. The applicant was retained. 8. On 10 June 2013, the applicant's senior commander requested the applicant be separated for failure to comply with weight control standards. His discharge was previously suspended to give him an opportunity to comply with weight standards but he failed. 9. On 26 June 2013, the applicant's defense counsel requested the applicant be retained on active duty because he was pursuing an active duty retirement. At the time, he had nearly 17 years of active service. This request was later disapproved. 10. On 29 July 2013, following a legal review, the separation authority approved the separation action and ordered him separated. However, his separation packet was returned by the U.S. Army Human Resources Command because of incomplete entries. 11. On 15 January 2014, following corrections, the Commanding General, USAR Legal Command, approved the separation action and ordered the applicant honorably discharged effective 15 February 2014. He was found not qualified for retention and he was authorized half separation pay. 12. On 22 January 2014, HRC published Orders D-01-490013 ordering the applicant honorably discharged from the USAR/AGR, effective 25 February 2014. 13. He was discharged from the USAR/AGR on 25 February 2014. His DD Form 214 shows he completed 10 years, 7 months, and 13 days of active service and he had 6 years, 10 months, and 21 days of prior active service, for a total of 17 years, 6 months, and 14 days of total active service. He also had 4 years, 1 month, and 12 days of inactive service. 14. On 5 August 2015, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter informed him he had completed the required years of qualifying Reserve service and would be eligible for retired pay on application at age 60. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 18 states Soldiers who fail to meet the body fat standards set forth in AR 600-9 shall be separated under this provision when it is the sole basis for separation. The Soldier must be given a reasonable opportunity to comply with and meet the body fat standards. If no medical condition exists and if the individual fails to make satisfactory progress in the program after a period of six months, then initiation of separation or imposition of a bar to reenlistment is required. The service of Soldiers separated under this chapter will be characterized as honorable. 2. AR 140-30 (Active Duty in Support of USAR and AGR Management Program) prescribes policy and procedures for selecting, assigning, attaching, using, managing, and administering USAR Soldiers on active duty in the AGR program. a. Paragraph 8–2 (Service obligations extending beyond AGR program membership): Soldiers who do not have a statutory service obligation prescribed in other regulations will have the options listed below when they are released from the AGR program prior to the completion of their term of enlistment. An involuntary release from active duty resulting from an adverse action will have precedence over these options. The soldier will be (1) Released from active duty to serve the remainder of the enlistment in a troop program unit (TPU), in the Individual Ready Reserve (IRR), or as an individual mobilization augmentee (IMA) in the USAR; and (2) transferred to the Retired Reserve if the Soldier is qualified and applies for the transfer. b. Paragraph 9-2 (Involuntary separation): AGR soldiers may be released involuntarily from active duty at any time per AR 635–200 (enlisted). c. Paragraph 9-4 (Retirement): a. AGR soldiers who have completed at least 20 years of active federal service and are otherwise eligible may, upon application and at the discretion of the Secretary of the Army, be retired. The provisions of AR 635–200 (enlisted) apply. AGR soldiers who are qualified for Reserve retirement (other than active duty) may apply under AR 135–180. d. Paragraph 9-6 (Assignment on release from AGR status): A Soldier will be assigned to the USAR Control Group (Reinforcement) on release from the AGR program unless: * The Soldier is eligible for retirement and applies for it * The Soldier is eligible for and requests discharge in lieu of release from active duty * The Soldier has located an assignment within the USAR other than USAR Control Group (Reinforcement) and the commander of that unit requests an immediate assignment * The circumstances of the discharge require other action * A statutory service obligation requires transfer to a TPU or another control group; HRC will determine the status and initiate appropriate assignment orders for these Soldiers 3. AR 600-8-7 prescribes the policies for the retirement services and Survivor Benefit Plan functions of military human resources management. Chapter 9 of the version in effect at the time (dated 28 April 2015) provides an overview of policies applicable to the U.S. Army Reserve for non-regular retirement. a. Paragraph 9-10 (Eligibility) states voluntary requests for assignment of eligible Soldiers for transfer to the Retired Reserve must be in writing and in accordance with AR 140–10 (Assignments, Attachments, Details, and Transfers), paragraph 6–1. However, Soldiers requesting reassignment to the Retired Reserve for voluntary reasons may have their request disapproved if they are subject to stop loss, or flagged for adverse action, and so forth. Involuntary reassignment to the Retired Reserve only pertains to reserve enlisted members of the Army who are in an active status, reached the maximum years of service or age, and meet the criteria outlined in paragraph a, above. Reserve Component Soldiers are eligible for transfer to the Retired Reserve if they are in receipt of a 15– or 20–year letter. b. Paragraph 9-11 (Involuntary non-regular retirement) states Soldiers who must be removed from an active Reserve status for any reason and who qualify for a non-regular retirement under the provisions of Title 10, U.S. Code, section 12731(b) will not be separated or discharged without being properly counseled, in writing, regarding the impact of separation versus reassignment to the Retired Reserve. Soldiers requesting discharge or separation must also receive counseling in writing regarding the impact on retirement benefits and retired pay. c. Paragraph 9-12 (Discharge versus Retired Reserve) states Soldiers electing discharge vice transfer to the Retired Reserve must be aware that a discharge will have an impact on retired pay. Regardless of the Soldier’s retired pay plan, Soldiers who elect discharge before age 60 will have their High–3 average or final pay computed based on the rates in effect on date of discharge. However, Soldiers electing transfer to the Retired Reserve will continue to receive credit for longevity and the Defense Finance and Accounting Service will compute retired pay based on the rates in effect at retirement. DISCUSSION: 1. The applicant entered the USAR AGR program in July 2003. Between 2008 and 2011, he repeatedly failed to comply with Army weight control standards. In June 2011, separation action under chapter 18 of AR 635-200 was initiated. He acknowledged receipt and in January 2013, he submitted a request for a conditional waiver. The waiver was approved. His separation action was suspended to give him an opportunity to comply with Army weight standards. Despite the waiver, he continued to exceed weight standards. 2. His failure to comply with weight standards justified termination of the conditional waiver and subjected the applicant to immediate involuntary separation from the USAR. A second waiver was submitted but it was disapproved by the separation authority. Despite the suspended action and help form his chain of command, the applicant showed no improvement. 3. The separation authority ultimately approved his discharge from active duty and the USAR under the provisions of AR 635-200, chapter 18, due to weight control failure. 4. By regulation, when a Soldier is removed from the AGR program, they are transferred back to the USAR (TPU, IRR, or IMA), depending on their military service obligations. Once the Soldier is in the USAR Control Group, the Soldier may apply for a transfer to the Retired Reserve. As the applicant was serving an indefinite reenlistment, he had no statutory or contractual military service obligations, and his transfer to the USAR Control Group (TPU, IRR, or IMA) was not required. Additionally, the circumstances of the applicant's discharge in this case required other action (chapter 18, AR 635-200). 5. Although he was issued a 20-Year Letter, he did not qualify for a transfer to the Retired Reserve, and because he only completed 17 years, 6 months, and 14 days of total active service, he does not qualify for an active service retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001085 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001085 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2