PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            1 June 2000
	DOCKET NUMBER:   AR1999030179

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. James C. Hise		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Melvin H. Meyer		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 she be afforded the opportunity to appeal her Department of the Army bar to reenlistment and if her appeal is successful that she be reinstated to active duty in the Active Guard/Reserve (AGR) Program.  

3.  The applicant states, in effect, that on 26 January 1999 her commander and unit administrator presented her with a Department of the Army bar to reenlistment under the Qualitative Management Program (QMP) and advised her not to appeal the bar because she had over 18 years of service and would be able to retire.  She further states that they advised her that if she were to appeal the bar and was unsuccessful in her appeal, she would be discharged instead of being retired.  She goes on to state that they failed to provide her an opportunity to consult with a legal assistance attorney regarding the merits of her case.  She also states that she subsequently inquired about her retirement at the Office of the Deputy Chief of Staff for Personnel (ODCSPER) and was asked why she did not appeal the bar and was advised to contact the legal assistance attorney at the Regional Support Command (RSC).  When she did so she discovered that she could have appealed the bar without risk of losing her entitlement to retirement.  However, when she attempted to submit her appeal with the support of her chain of command she was advised that the Board was the only authority who could grant her an exception to the filing time limit for submission of her appeal.  In support of her application she submits copies of her request for redress under Article 138, UCMJ, the letters of support from the chain of command and copies of the documents that served as the basis for her bar to reenlistment under the QMP. 

4.  The applicant’s military records show that while serving in the pay grade of   E-7 in the AGR Program as a personnel sergeant with 17 years and 11 months of active service, she reenlisted on 8 May 1997 for a period of 4 years.

5.  On 26 January 1998 the applicant was advised by her commander that a USAR AGR QMP board which convened on 14 November 1997 had determined that she should be barred from reenlistment under the QMP based on seven Noncommissioned Officer Evaluation Reports (NCOER) indicating deficiencies/weaknesses in physical fitness/weight.  She was also advised that should she desire to appeal the bar, she must submit her appeal within 90 days and was further advised in the notification memorandum that her commander, local personnel officer, legal assistance officer, and personnel at the ARPERSCOM were available to assist her in any way possible.  She acknowledged receipt of the notification and indicated on the same day that she had at least 18 years of active Federal service on the date of notification and that she would retire upon attaining 20 years of active Federal service (1 July 1999).

6.  On 20 May 1999 the applicant submitted a memorandum to her commander alleging a complaint of wrong under Article 138, UCMJ, in that she had been improperly advised of her rights to appeal the bar to reenlistment and had not been provided the opportunity to consult with legal counsel.  She requested redress in the form of being able to submit an appeal to the bar to reenlistment and if approved, be allowed to remain on active duty in the AGR Program.  The applicant’s commander, after investigating the complaint, determined that the applicant had not been properly advised and recommended approval of her request to submit an appeal.  The subsequent commanders, to include the RSC commanding general determined that her allegations were substantiated and recommended approval as well.

7.  On 16 June 1999 the Total Army Reserve Personnel Command (ARPERSCOM) forwarded the applicant’s request to the Office of the Chief of Army Reserve (OCAR) indicating that while the applicant’s case warranted relief, the ARPERSCOM did not have the authority to grant her the redress she was requesting.  The applicant was subsequently notified by the ARPERSCOM that this Board was the only agency that could grant her an exception to policy after she had elected an option and chosen to retire.

8.  Supporting statements from the commander and the unit administrator indicate that prior to presenting the bar to reenlistment to the applicant, the unit administrator contacted officials at the RSC full-time manning office and Judge Advocate’s office to ascertain the applicant’s options and was informed by both offices that if the applicant elected to appeal the bar, she would be separated within 60 days after the appeal was denied.  Accordingly, they advised her to elect the retirement option.  Both officials accept responsibility for the information/advice they gave the applicant and both support her appeal and retention in the AGR Program.

9.  A review of the applicant’s records shows that for the majority of her career she had served as a personnel specialist/sergeant responsible for a wide variety of personnel issues that include retention issues, evaluations, retirement points, and a myriad of other personnel actions.  She had also completed a course in Retention in 1994 and was serving as the Senior Personnel Services Sergeant at the time she was barred from reenlistment.

10.  The applicant was honorably released from active duty on 30 June 1999 and was transferred to the Retired list in the pay grade of E-7 effective 1 July 1999.

CONCLUSIONS:

1.  The Board finds that the applicant bears some of the responsibility in this matter.  First of all, there is no indication in the available evidence to show that she was required to elect her option on the date of notification as she did or that she was denied the opportunity to consult with counsel.  Second, the Board finds it reasonable to presume that given her experience as a senior personnel sergeant she should have been aware of her rights as it pertained to retention matters and the right to consult with counsel before making an election.

2.  Notwithstanding, she has presented sufficient evidence to show that she was in fact improperly advised at the time as to her options in the matter and as a result, took the only logical choice available to her under the circumstances.  As a result, she has been denied a right that she otherwise would have been entitled to exercise without the risk of losing her retirement benefits, had she been properly advised.

3.  Although the Board cannot determine with any degree of certainty whether or not she would have been successful in her appeal of the bar to reenlistment under the QMP; she nevertheless should be afforded the opportunity to appeal, without any risk of losing her entitlement to retirement benefits.

4.  Therefore, the Board finds that it would be in the interest of justice to grant the applicant an exception to policy to appeal the bar to reenlistment under the QMP outside of the established guidelines for appeal, but no later than 180 days after the decision of this Board.  

5.  In the event her appeal is approved, her retirement will be voided and she will be reinstated to active duty in the AGR Program with entitlement to all back pay and allowances as well as any promotion reconsideration she is due as if she was never separated from active duty.

6.  Furthermore, the applicant is entitled to submit her appeal directly or through her former chain of command if she so desires.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned is entitled to submit an appeal of the Department of the Army bar to reenlistment under the QMP as an exception to the appeal deadlines within 180 days of the decision of the Board.

2.  In the event the appeal is approved, the retirement of 30 June 1999 pertaining to the individual concerned will be voided and she will be reinstated to active duty in the AGR Program with entitlement to all back pay, allowances, constructive service and promotion reconsideration that she is due as if she had never been separated.

BOARD VOTE:  

__jch ___  __mhm__  __rvo ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____James C. Hise_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999030179	
SUFFIX		
RECON		
DATE BOARDED	2000/06/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  7	100.0600/qmp	
2.		
3.		
4.		
5.		
6.