PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 September 2000                   
	DOCKET NUMBER:   AR1999034343

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		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 that he receive pay and retirement points for the period 14 September – 28 October 1999.  He also requests to be reimbursed for his lodging expense he incurred when he finally out processed.

3.  The applicant states that he was discharged without the chance to out process from active duty in the U. S. Army Reserve (USAR) Active Guard/Reserve (AGR) Program and reenlist in the USAR.  Because of this he could not start the unit administrator job that he had.  He did not have a Certificate of Release or Discharge from Active Duty, DD Form 214, so he could not draw unemployment.  He was held in a no-pay status for over 45 days.

4.  The applicant’s military records show that he enlisted in the Army National Guard on 18 September 1989.  On 14 October 1994, he extended for an additional 3 years, making his expiration term of service (ETS) 17 September 1998.  It appears that at some point the applicant transferred to the USAR.  He apparently extended on an unknown date for a further 1-year period, making his ETS 18 September 1999 but his extension paperwork is not available.

5.  On 15 September 1996, the applicant entered active duty in an AGR status.  On 4 January 1999, he was assigned to Company C, 844th Engineer Battalion, Greeneville, TN.  

6.  Records at the Army Reserve Personnel Command (AR-PERSCOM) indicate that on 24 August 1999 the applicant e-mailed his personnel management noncommissioned officer (PMNCO) expressing his desire to ETS .  On              11 September 1999, the Full Time Support Management Directorate (FTSMD) prepared his ETS packet.  It is unclear why there was a delay in processing his REFRAD.  On 14 (sic) September 1999, the applicant was released from active duty (REFRAD) and discharged from his Reserve status. The Chief, Army Reserve approved the applicant’s request for an antedated USAR reenlistment.  On 21 October 1999, AR-PERSCOM received a copy of his antedated Enlistment/Reenlistment Document, DD Form 4.  Based on this DD Form 4, the applicant’s discharge orders were revoked and new orders were published showing he was REFRAD.  Orders were published assigning him to the Fort Knox, KY Transition Point for separation processing with a report date and time of  0800 on 28 October 1999. 

7.  In the processing of this case, an advisory opinion was obtained from         AR-PERSCOM, FTSMD (SEE ATTACHED).  That office noted all the regulations
governing this case, pertinently Army Regulation 140-111, paragraph 8-16a which states that “If a soldier is not reenlisted or extended in the USAR before REFRAD, the soldier will be discharged at REFRAD” and Army Regulation     635-200, chapter 4, which requires a soldier to be discharged at ETS when there is no service remaining obligation.  That office did recommend partial approval of the applicant’s request and that, based on the antedated USAR reenlistment contract, the applicant is entitled to receive pay and travel expenses incurred on 28 October 1999 when he reported to the transition point and also entitled to be credited with a day of active duty for 28 October 1999.

8.  The applicant rebutted the advisory opinion.  He stated that he felt FTSMD made the mistake that caused the problem and that he should be paid the full amount plus retirement points for the time he was held in limbo.  He believes that he was paid for his mileage (on 28 October 1999) but was not reimbursed for his motel expense.  Fort Knox (finance office) claimed that he was not on a temporary duty order and so was not entitled to stay in a motel.  However the FTSMD transition office told him it was a valid order and he should be reimbursed for his motel room.

9.  On 24 August 2000, the Defense Finance and Accounting Service – Indianapolis Center (DFAS-IN) informed the Board that Greeneville, TN is 313.5 miles from Fort Knox, KY.  The Joint Federal Travel Regulation states that an individual cannot be required to travel more than 350 miles per day.  Common sense says that if the applicant had to report to Fort Knox by 0800 on 28 October 1999, he would have had to have traveled there the day prior and therefore he would have been entitled to lodging for that one night.  If Fort Knox had asked them whether to pay him for that one night of lodging, they would have told Fort Knox “yes.”

CONCLUSIONS:

1.  The Board concludes that there is some evidence of an injustice in this case.

2.  It appears that the applicant may have partially caused this problem himself --his e-mail to his PMNCO stated he wanted to ETS; it did not state he wanted to end his AGR tour but remain in the USAR.  However, the Board notes             AR-PERSCOM’s acknowledgement that the FTSMD delayed, for an unknown reason, from 24 August to 11 September 1999 to prepare his separation packet.  

3.  The Board cannot determine why he was discharged on 14 September 1999 when the available documents show his ETS should have been 17 September 1999.  

4.  However, the applicant was a junior NCO and not a senior NCO with a lot of reenlistment/extension experience behind him.  His unit reenlistment NCO could have talked to him more to find out just what his expectations were as his ETS drew near.  FTSMD could have acted more efficiently in preparing his separation packet.  

5.  The applicant was granted an antedated reenlistment contract and based upon this contract his 14 September 1999 discharge orders were revoked and REFRAD orders were published on him with an effective date of 28 October 1999.  As a matter of equity, it would be appropriate to show that the applicant remained in an AGR status until 28 October 1999.  This would allow him to be paid for the period 14 September – 28 October 1999 and to earn the appropriate retirement points for that period.  This may necessitate amending his USAR enlistment contract.

6.  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:

     a.  showing that the applicant was released from the AGR and from active duty on 28 October 1999 with the appropriate corrections to his DD Form 214 and amending his antedated reenlistment document of 15 September 1999 as necessary if appropriate;

     b.  paying the applicant all due pay and allowances for the period                  14 September – 28 October 1999 and awarding him the appropriate retirement points; and

     c.  paying the applicant all due pay and travel expenses to which he is entitled, including any lodging expenses he may have incurred, up to the normally authorized limit as a result of his attachment to the U. S. Army Transition Point, Fort Knox, KY on 28 October 1999.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__cla___  __wtm___  __tbr___  DENY APPLICATION

			Celia L. Adolphi
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999034343	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.01	
2.		
3.		
4.		
5.		
6.