IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150001683 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, in effect, correction of his military records by: * Showing he was placed back on active duty from April 2010 to the end of his orders * Showing he was placed on active duty from October 2010 to the end of his duty assignment * Paying him back pay and allowances from April 2010 * Removing him from the Retired Reserve and returning him to a Troop Program Unit (TPU) * Correcting his Noncommissioned Officer Evaluation Reports (NCOERs) from 2009 to present * Restoring all medical and dental benefits that were taken from him from March 2010 to present * Restoring all medical coverage taken from his spouse from October 2010 to present * Placing his spouse back on the “Yellow Ribbon Retreat” she was removed from in January 2010 2. The applicant states that all misconduct was reported to command, Department of the Army, and his United States Senator but nothing was done. 3. The applicant provides an unidentified attachment presumed to be a 34 page packet from the office of an U.S Senator. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 3 April 1979. 2. In a memorandum dated 4 May 2000, the applicant was notified of his eligibility for retired pay at age 60 (20-Year Letter) based on his completion of 20 qualifying years of Reserve service. 3. The applicant attained the rank of sergeant major, pay grade E-9, effective 15 January 2005. 4. Orders 09-126-00052, 96th Sustainment Brigade, dated 6 May 2009, ordered the applicant to Active Duty as a member of his USAR unit with a report date of 8 July 2009 to Fort Hood, Texas. His period of active duty was 400 days. 5. The applicant received an NCOER for the period 3 October 2008 through 2 October 2009 wherein he was given an annual evaluation for his performance of duty as Contract Coordination Cell in Iraq. This report is filed in his Official Military Personnel File (OMPF) and reports that he needed improvement in every area of responsibility except for training, which was rated as success. His overall performance and potential was rated as poor. The applicant did not sign the report. 6. In October 2009, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for using obscene and vulgar language towards a superior commissioned officer. The GOMOR was imposed as an administrative measure and not as punishment pursuant to the Uniform Code of Military Justice (UCMJ). The applicant acknowledged receipt of the GOMOR on 21 October 2009. The imposing authority directed filing of the GOMOR in the applicant’s local file for 1 year. 7. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was initiated on 9 December 2009 due to a non-transferable adverse action. 8. On 26 February 2010, the applicant accepted nonjudicial punishment (NJP) for violating a lawful general order by wrongfully entering the living quarters of a service member of the opposite gender. He requested a closed hearing. He did not request anyone to speak on his behalf. He indicated that matters in defense, extenuation, and/or mitigation were either attached or would be presented in person. The applicant was found guilty of all specifications. The NJP was to be filed in the performance folder of his OMPF. No punishment was imposed. On 8 April 2010, the applicant submitted his appeal wherein he argued the specification was so vague he could not properly prepare a defense. He contended that during the time of the offenses he was visiting other locations. He also argued that it was improper for the commander to charge him because he was also an alibi witness. On 18 April 2010, the applicant’s appeal was denied. 9. The applicant received an NCOER for the period 3 October 2009 through 15 April 2010 wherein he was given a change of rater evaluation for his performance of duty as Iraqi Security Forces Section Sergeant. This report is filed in his Official Military Personnel File (OMPF) and reports that he needed improvement in the areas of competence and responsibility/accountability. All other areas of responsibility were rated as success. His overall performance was rated as fair and his overall potential was rated as poor. The applicant did not sign the report due to his redeployment. 10. Orders 105-0173, Fort Bliss, Texas, dated 15 April 2010, released the applicant from active duty effective 17 May 2010. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 months and 13 days of active duty service during this period. He served in Kuwait/Iraq from 12 September 2009 to 12 April 2010. The reason for his separation was completion of required active service and his characterization of service was honorable. 11. An AHRC Form 249-E (Chronological Statement of Retirement Points) prepared 21 February 2015, shows that the applicant had 31 years, 11 months, and 21 days of qualifying time for retirement. He completed more than 50 points in each year from 3 April 1979 through 2 April 2011. He received only 15 membership points for the period 3 April 2011 to 2 April 2012. He received 25 points for the period 3 April 2012 to 2 April 2013. He received 26 points for the period 3 April to 7 August 2013. On 8 August 2013 he was transferred to the Retired Reserve. 12. In the processing of this case, an advisory opinion was obtained from the Chief, Operations Management Division, U.S. Army Human Resources Command (HRC). The opinion simply stated that HRC could not find a regulatory basis to approve the applicant’s request to return to an active status. Accordingly, he was retired by operation of law and he was not eligible to come out of the Retired Reserve. The opinion also noted that he had failed to maintain 50 points a year after receiving his 20-Year Letter. 13. On 9 March 2015, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. His response dated 19 March 2015 was received on 30 March 2015. In it, he made the following comments/arguments: a. He disagrees with the HRC opinion. He argues that the governing regulation provides an exception to removal from active status for failure to accrue 50 retirement points in a retirement year. He contends that any such removal should be void because it is contrary to law. b. He argues that he submitted a timely request for waiver in August 2013 for his nonparticipation but did not get any response. He was subsequently transferred to the Retired Reserve. c. He contends that he was assigned to the Individual Ready Reserve (IRR) for the purpose of mobilization and does not understand why he was removed from mobilization status. However, his erroneous removal was misrepresented and concealed behind closed doors. d. He comments that taking or threatening to take unfavorable personnel action or withholding or threatening to withhold a favorable personnel action in retaliation is unlawful. e. He states that double punishment is prohibited under the UCMJ. When NJP has been imposed for an offense, punishment may not again be imposed for the same offense, nor may the imposed punishment be increased. He contends that the command's action to rescind his orders based on his misconduct and Flag constituted double punishment. Accordingly, he believes the command violated his right to due process. 14. In September 2015, in response to the staff of the Board request for clarification, HRC provided an email communication stating that the applicant did not accrue the required 50 points per retirement year for both 2012 and 2013. Accordingly, he was not eligible for a one-time waiver. 15. On 15 September 2015, a copy of the email from HRC was sent to the applicant for his information and opportunity to respond. No response was received. 16. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) provides that an exception to removal from active status for failure to earn the required 50 retirement points may be authorized by the area commander for Soldiers assigned to a TPU, or by the Commander, HRC for all other USAR Soldiers as follows: a. The Soldier requests a waiver and submits documentation to show that nonparticipation was due to circumstances beyond his or her control. Such circumstances are defined as those of a personal or temporary nature such as extended illness or civilian employment interferences. b. A waiver of nonparticipation may be granted only on a one–time basis for failure to earn the required 50 points during a retirement year. 17. Army Regulation 623-3 (Evaluation Reporting System): a. This regulation prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, to include the NCOER. b. Alleged errors, injustices, and illegalities in a rated Soldier's evaluation may be brought to the attention of the commander by the rated individual or anyone authorized access to the report. The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. c. NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. To justify deletion or amendment of the report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the applicant. d. Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an NCOER through date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant it. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a general rule, with the passage of time. Prompt submission is, therefore, recommended. 18. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. The NCOER is to be filed in the performance section of the AMHRR. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected by: * Showing he was placed back on active duty from April 2010 to the end of his orders * Showing he was placed on active duty from October 2010 to the end of his duty assignment * Paying him back pay and allowances from April 2010 * Removing him from the Retired Reserve and returning him to a Troop Program Unit (TPU) * Correcting his Noncommissioned Officer Evaluation Reports (NCOERs) from 2009 to present * Restoring all medical and dental benefits that were taken from him from March 2010 to present * Restoring all medical coverage taken from his spouse from October 2010 to present * Placing his spouse back on the “Yellow Ribbon Retreat” she was removed from in January 2010 2. The available evidence shows the applicant received a GOMOR in October 2009 for using obscene and vulgar language towards a superior commissioned officer. The GOMOR was issued as an administrative measure and was not punishment under the UCMJ. 3. In February 2010, the applicant accepted NJP for violating a lawful order to not enter the living quarters of a service member of the opposite gender. No specific punishment was given. The applicant’s appeal was denied. 4. The evidence of record shows the applicant received two NCOERs covering the period 3 October 2008 through 15 April 2010. These evaluations reported that he needed to improve his performance of duty. Overall he was considered to have fair to poor potential. There is no clear and convincing evidence that is strong and compelling to warrant any changes to the content or filing of these NCOERs. 5. On 17 May 2010, the applicant was released from active duty due to completion of required service. He was subsequently transferred to the IRR. The applicant argues that he received double punishment for the same events based on his mobilization orders being revoked. However, the evidence shows he was not punished twice. The actions taken to remove him from mobilization were simply the results of personnel management decisions that may have been based on his poor performance of duty and not on his previous misconduct. 6. The applicant’s argument that the governing relation provides for an exception to removal from active status for failure to accrue 50 points per year is faulty. While the regulation in question does provide for a one-time exception, the applicant had failed for two consecutive retirement years. There is no authorized exception for more than one retirement year. Accordingly, his removal from active status was accomplished without violating any regulation or law. 7. Based on the above, there is no substantive evidence showing that the applicant was improperly or unfairly removed from an active status and transferred to the Retired Reserve. 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) AR20150001683 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001683 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1