PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 April 2003                   
	DOCKET NUMBER:   AR2002078907

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Harry B. Oberg		Member	
	Mr. Ronald J. Weaver		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 the date of his discharge from the United States Army Reserve (USAR) be changed from 30 November 1993 to 
15 February 1996.  

3.  The applicant states, in effect, he reenlisted while on active duty to perform three years in the inactive Individual Ready Reserve (IRR) of the USAR in order to maintain the option of joining the active USAR at a later date without the loss of rank, he was a staff sergeant (SSG) at the time, knowing that if her were totally out of the service for 30 months, he would not be able to maintain his rank upon reenlistment.

4.  In March 1998, the applicant claims he contacted a recruiter in order to join the active USAR.  A SSG position was found and after passing all tests he was ready to sign the enlistment contract.  However, the recruiter looked up his status and he was advised that he would have to be assessed as a sergeant (SGT) because he had been discharged from the IRR on 30 November 1993.  He states that by correcting this discharge date, his subsequent enlistment in the USAR in May 1989 would not have violated the 30 month rule and he would have been allowed to retain his rank as a staff sergeant (SSG).  He chose to enlist in the USAR and attempt to work out the problem from within the system.  He claims that the whole time he was in the IRR he remained at the same address and he was never contacted by the Army Reserve Personnel Command (ARPERSCOM) or advised that there was any requirement for his to perform any active duty service or service in the active USAR.  He asks that the Board change his USAR discharge date to his original contracted expiration of term of service (ETS) date of 15 February 1996.  

5.  The applicant’s military records show that while serving on active duty at Fort Benning, Georgia, on 16 February 1993, the applicant signed a USAR enlistment contract committing him to three years of service in the USAR after his release from active duty (REFRAD).  

6.  On 5 May 1993, the applicant was REFRAD after completing a total of 
10 years, 9 months, and 13 days of active military service.  The separation document (DD Form 214) issued to the applicant upon his separation confirms that he held the rank of SSG on the date of his REFRAD.  It also verifies that he was transferred to the IRR at that time. 

7.  Orders Number D-11-398405, dated 30 November 1993, issued by ARPERSCOM, St. Louis, Missouri, directed the applicant’s honorable discharge from the USAR.  A stamped note on the orders indicates that although the applicant was assigned to the unit, he was being discharged based on not being present for duty.  

8.  On 25 March 1998, the applicant enlisted in the USAR for 2 years in the rank of sergeant (SGT), and he has remained serving in some USAR capacity ever since.  Currently, he is assigned to an active USAR Troop Program Unit (TPU) in Ohio.  

9.  On 16 August 2001, the 88th Regional Support Command, Ohio, Inspector General (IG), after conducting an inquiry into the applicant’s case, determined that the applicant had a valid USAR IRR contract that he entered into on 
16 February 1993, and this contract was not honored.  The IG further indicated that it appeared that he was erroneously discharged as no information in regard to this matter could be found in the records.  The IG finally advised the applicant to apply to this Board for relief.  

10.  In connection with the processing of this case, an advisory opinion was provided by personnel officials from the Transition and Separations Branch, ARPERSCOM.  This opinion stated that the applicant was honorably discharged from the USAR because the record transferred from the Regular Army did not contain his IRR enlistment contract of 16 February 1993.  As a result, discharge orders were published based on the partial records received, and it is now evident that these orders were in error.  The advisory opinion contains a recommendation that the discharge orders be revoked and that new orders be published showing the applicant’s discharge date from the IRR as 15 February 1996.  The applicant was provided a copy of this advisory opinion and concurred with its contents on 22 December 2002. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his 30 November 1993 discharge from the USAR was erroneous and it finds this claim has merit.  

2.  The evidence of record confirms that the applicant was erroneously discharged from the USAR on 30 November 1993 as a result of his USAR enlistment contract not being on file in his record, as confirmed in the ARPERSCOM advisory opinion.  Therefore, the Board concludes that it would be appropriate to correct the record to show that the applicant was discharged from the USAR on 15 February 1996 vice 30 November 1993, as is currently indicated in the record. 

3.  The Board also concludes that based on the corrected discharge date indicated in the preceding paragraph, an enlistment grade determination should be conducted under the enlistment policy in effect at the time of the applicant’s 1998 reenlistment.  Further, should it be determined that it was authorized, his records should also be corrected to show he entered the USAR in the rank and pay grade of SSG/E-6 on 25 March 1998.
4.  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 be corrected by:

a.  showing the individual concerned was discharged from the USAR on 
15 February 1996 vice 30 November 1993, as is currently shown in the record; 

b.  completing a prior service enlistment grade determination under the enlistment policy in effect at the time of his 25 March 1998 reenlistment, based on a 15 February 1996 prior service discharge date; and 

c.  should this result in a determination that it was authorized, by showing he reentered the USAR as a SSG/E-6 on 25 March 1998, and providing him all back pay and allowances due as a result. 

BOARD VOTE:  

__hbo___  __rjw ___  __wtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Walter T. Morrison____
		        CHAIRPERSON

INDEX

CASE ID	AR2002078907	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/17	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.  225	112.0300	
2.  190	110.0100	
3.		
4.		
5.		
6.