IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150005113 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 records to show his request for continuation in the Active Guard Reserve (AGR) Program was approved. 2. The applicant states: * his chain of command originally approved his release from active duty (REFRAD)/realignment packet which would have allowed him to obtain new orders for AGR assignment and make a permanent change of station * a few days later, his packet was returned in order to update the first sentence of his DA Form 4187 (Personnel Action) to reflect his retention control point (RCP) due to a directive issued by the U.S. Army Human Resources Command (HRC) 2 weeks prior to his original packet submission * less than 2 weeks after his original packet approval, his chain of command disapproved the packet and recommended his release from the AGR Program within 90 days * his chain of command knew he had 1 year to reach sanctuary and 2 additional years to obtain an active duty retirement * he did not provide evidence against a Department of Army Civilian which would have aided in the individual's removal from the battalion and his chain of command used that as a reason to get rid of him * the unit commander also lied to him about his status, assistance in correcting errors, and provided no mentoring to improve his performance * the memorandum and supporting documents included in the separation packet to HRC were not accurate * the counseling statements provided and used to support the commander's memorandum were not signed by him or the person who wrote them, rendering them not legal * no form of counseling regarding expectations, authority, or guidance on what was to be done by the AGR staff in the absence of the unit leadership transpired when the new commander took command of the 369th Transportation Company on 15 December 2013 * the unit commander was only in command of the unit for 2 months prior to the second submission of his REFRAD/realignment packet * the previous commander gave an outstanding review of his abilities as the full-time staff supervisor as reflected in the last noncommissioned officer evaluation report (NCOER) he received prior to his separation * the statements and the timeline the commander used in his memorandum recommending disapproval of his packet were not supported by signed counseling statements or any other type of documentation * he only received one counseling statement along with the other AGR Soldiers which was a general counseling and not specific to job duties and functions of the AGR staff * the memorandum he received from HRC informing him of his separation stated his separation was due to his packet not being submitted in a timely fashion, although he could not submit the packet until completion of his physical profile period and recovery time * additionally, his unit commander deliberately delayed the submission of the packet to HRC as seen in the supporting email concerning the DA Form 4187 * furthermore, his chain of command either recommended medical retirement or permanent change of station for two other AGR Soldiers who caused problems and one other AGR Soldier with pages upon pages of documented disregard for a commander's authority 3. The applicant provides: * Regional Support Command (RSC) Surgeon Medical Profile Request Form * Standard Form 507 (Functional Capacity Certificate Form 507), dated 26 September 2013 * NCOER covering the period 1 December 2012 through 30 November 2013 * DA Form 4187 (Personnel Action) with commander's recommendation for approval of his REFRAD alignment packet, dated 10 February 2014 * DA Form 5646 (Statement of Conditions of Service – AGR), dated 8 February 2014 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 20 July 2005 * DA Form 705 (Army Physical Fitness Test Scorecard) * DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purposes) * DA Form 4856 (Developmental Counseling Form), dated 21 February 2014 * DA Form 4187 with commander's recommendation for disapproval of his REFRAD alignment packet, dated 24 February 2014 * complete REFRAD/realignment packet, to include endorsements and HRC memorandum of disapproval, dated 11 March 2014 * DA Form 2823 (Sworn Statement), dated 9 March 2014 * self-authored letter to his Member of Congress * DD Form 214 (Certificate of Release or Discharge from Active Duty) * multiple HRC orders * Enlisted Record Brief * Secretary of the Army memorandum, subject: Army Directive 2014-03 (Retention Control Points), dated 28 January 2014 * email correspondence with multiple individuals in his chain of command CONSIDERATION OF EVIDENCE: 1. After over 12 years of prior active service and over 9 years of prior inactive service in the Regular Army, the U.S. Army Reserve (USAR), and the Army National Guard, the applicant entered active duty in a USAR AGR status on 23 August 2010 in the rank of sergeant first class. 2. He provided a copy of a Functional Capacity Certificate, signed and dated by him on 13 September 2013, in which the sections to be completed and signed by the examining provider are incomplete and unsigned. The accompanying RSC Surgeon Medical Profile Request Form, completed by the applicant, shows a temporary physical profile was requested. Whether, on what date, or for what medical or physical condition a temporary physical profile was issued is unclear from the documents provided. 3. An NCOER covering the period 1 December 2012 through 30 November 2013 shows he was given the following ratings: * "Excellence" in Competence * "Needs Improvement (Some)" in Physical Fitness and Military Bearing with bullets indicating an injury resulted in a failed Army Physical Fitness Test (APFT) on 9 June 2013 which he was unable to retake during the rating period because of corrective surgery * "Success" in Leadership * "Success" in Training * "Excellence" in Responsibility And Accountability * "Fully Capable" by his rater in Overall Potential for Promotion and/or Service in Positions of Greater Responsibility * "Successful – 2" by his senior rater in Overall Performance * "Superior – 2" by his senior rater in Overall Potential for Promotion and/or Service in Positions of Greater Responsibility 4. On 10 February 2014, he submitted a packet requesting continuation in the AGR Program and alignment of his REFRAD date of 22 August 2013 with his expiration term of service (ETS) date of 30 April 2030. His packet included a DA Form 4187, DA Form 5646, DD Form 4, DA Form 705, and DA Form 1506. 5. His company commander signed the DA Form 4187 on 10 February 2014 and recommended approval. Any addenda to the DA Form 4187 on which higher echelon commanders within his chain of command might have signed and recommended either approval or disapproval of the requested action were not included by the applicant for the Board's review. There is no evidence of record the request was forwarded through the chain of command or, if so, what the recommendations of the commanders senior to the company level were. 6. The DA Form 5646 was signed by the applicant on 8 February 2010. By signing this document he acknowledged he understood that if already in an AGR status and being renewed or continued by reenlistment, extension, or additional AGR tour: * he would be considered for continuation or renewal on AGR status under the criteria of Army Regulation 135-18 (The AGR Program) and Army Regulation 140-30 (Active Duty in Support of the USAR and AGR Management) * his voluntary entry on active duty in an AGR status did not guarantee that he would be offered a subsequent AGR tour or that he would attain 20 years of active Federal service for retirement purposes 7. The DA Form 4 shows he reenlisted in the USAR on 20 July 2005 for an indefinite period of time. The DA Form 705 shows he was administered a record APFT on 9 February 2014 and passed with a score of 206. The DA Form 1506 shows he was credited with 16 years, 7 months, and 18 days of total active Federal service as of 12 February 2014. 8. On 21 February 2014, his immediate commander provided him with performance counseling based on the previous 90 days' performance. Both the applicant and the commander signed the form on the same date. a. The DA Form 4856 shows his commander addressed the following key points of discussion and based on the below observations informed him he would not recommend approval of his request for continuation in the AGR Program: (1) Competence: He has been delinquent on several tasks to the battalion, to which the common reply was that it was not his task to complete. He has not been proactive in finding and placing Soldiers for schools without explicit orders to do so. Constant mistakes on paperwork, to include simple memoranda, active duty for operational support packets, and his own DA Form 4187, show a lack of attention to detail. (2) Mental and Physical Toughness: He is an emotional noncommissioned officer who has been unable to balance his personal feelings without the guidance of his superiors on more than one occasion. Crying because things become difficult and asking to go home to deal with the stresses of day-to-day operations is unacceptable. Although he passed the APFT at the last opportunity, he will not recommend him for his next leadership course without more improvement. (3) Leadership and Decision-Making: He has not stepped up as a true leader. The unit status report is a good example of this. He was directed to ensure everything was completed and submitted to the battalion in a timely fashion, but this did not transpire according to reports from the battalion. During the first few battle assemblies he went home while company business was still being conducted. He is expected to put in the hours to assist the unit with all tasks. (4) Disobeying Orders: He was given an order the week prior to February's battle assembly to input every Soldier needing classes before the end of the training period, which he failed to accomplish. He was informed not to place two specific Soldiers in the unit on orders for annual training as both were flagged for suspension of favorable personnel actions, yet he placed them both on annual training orders for 9 days. b. The applicant claims the developmental counseling is filled with inaccuracies and exaggerations. He states no prior formal counseling on duty expectations was provided and the commander never followed up or formally closed out the counseling session. 9. The REFRAD realignment/continuation in the AGR Program packet that was ultimately submitted to HRC contained the DA Form 4187 the applicant signed on 10 February 2014, but in an altered form. The remarks section now included the statement which the applicant had knowledge of and agreed to making in order to be in keeping with regulatory guidance, requesting continuation in the AGR Program and alignment of his REFRAD date with his current RCP date in lieu of the old statement that requested continuation in the AGR Program and alignment of his REFRAD date with his ETS date. The remarks section also added the statements made by his commander recommending the applicant's removal from the AGR Program per the attached memorandum and requesting a 90-day extension to his current contract to allow him to prepare for transition. His company commander now recommended disapproval of the action and re-signed the document on 24 February 2014. The addenda to the DA Form 4187 show the battalion and group commander likewise recommended disapproval of his continuation in the AGR Program. The applicant takes issue with the fact that the form was altered without his knowledge or consent and that the group commander signed the form prior to the battalion commander. 10. The packet also contained a memorandum to HRC from the company commander, dated 2 March 2014, in which he delineated the reasons he did not believe the applicant should be granted continuation in the AGR Program. He listed eight instances in the years 2011 and 2012 where the applicant was counseled for failing to meet suspenses, missing duty, and failing to take care of Soldiers. The applicant claims these purported instances of counseling are not documented and transpired prior to his commander being in command. The commander also references the above-referenced counseling session he had with the applicant on 21 February 2014 and details the issues discussed. The applicant claims the listed counseling is grossly exaggerated and filled with inaccuracies. Both the battalion commander and the group commander supplied memoranda indicating they did not support his request for retention in the AGR Program. 11. A memorandum from HRC, dated 11 March 2014, denied his request for an exception to policy for REFRAD alignment within 90 days of his REFRAD. The memorandum notes the applicant was unable to submit his request for REFRAD alignment prior to his 90-day window due to a failed APFT. HRC determined his failure to meet Army standards and poor duty performance did not merit an exception to policy. He was granted a 90-day extension to allow him sufficient time for out-processing. 12. The applicant provided a copy of a sworn statement he claims he was forced to write under pressure and the threat of action under the Uniform Code of Military Justice if he did not reveal how he received a copy of his packet before the command could provide it to him. This statement details all the steps leading to Staff Sergeant W____, the battalion human resources noncommissioned officer, eventually emailing him a copy of the packet. He also provided copies of email correspondence he had with his battalion commander and various other members of his command regarding the status of his packet, his wife possibly sending threatening texts to his company commander, how it is that he came to receive a copy of the packet prior to officially receiving it from the command, and information regarding efforts to obtain school seats for Soldiers within the unit. 13. The applicant provided a copy of a lengthy letter he wrote to his Member of Congress, reiterating many of his aforementioned points of contention. He stated: * his Army career spans over 25 years, 17 of which were on active duty * he served in Germany, Saudi Arabia, Kansas, Kuwait, and Iraq and never received any punitive action * he is being forced out of the AGR Program by toxic leaders * when he submitted his REFRAD/realignment packet and request for continuation in the AGR Program, his company commander recommended approval of the request and then sent the packet back to him to forward through the chain of command * the packet was initially passed through the entire chain of command with approval at each level when it was sent back to him for reworking to include reference to RCP * the packet was resent to his company commander for signature after which he repeatedly asked several individuals within the battalion the status of his request, to no avail * on 21 February 2014, he was counseled by his company commander about his performance and advised by his commander that he was not going to recommend approval at that time, but he would monitor his strides toward improvement over the next 60 days and recommend approval if warranted * this counseling was the only one he received * he repeatedly asked his commander for a status of his packet between 24 February and 5 March 2014 * he conferred with two women in his command to appraise him of the status of his packet and one obliged on 7 March 2014 by emailing him a copy of the packet that was sent through the chain of command for signature * the DA Form 4187 he received via email had been altered to recommend disapproval and add lines to the remarks section requesting a 90-day extension to allow him to transition to civilian life * the memorandum his commander included in the packet contained information regarding unsigned counseling statements given to him prior to his time in command * at the next unit battle assembly on 8 and 9 March 2014, he was counseled by his first sergeant and commander regarding his receipt of the packet through unofficial channels before the command could provide it to him and inquiring how he received the packet * he explained from whom he received a copy of the packet and was told to write a sworn statement regarding the incident or he would be charged with aiding someone in committing an unlawful act * he reluctantly wrote a written statement under duress * on 21 March 2014, his battalion commander counseled him regarding the decision not to recommend approval of his request for continuation in the AGR Program * he noticed the date on the counseling statement was 1 month old, showing she had already made her decision a long time ago, and he refused to sign the counseling form * he always supported his chain of command and he always received one or two "Excellence" ratings in his evaluations * he has done everything required of him and more, putting the unit and its Soldiers ahead of himself to ensure completion of the mission, and respectfully requests reconsideration of his request for continuation in the AGR Program 14. His DD Form 214 shows he was honorably REFRAD on 1 June 2014 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of completion of required active service and transferred to the USAR Control Group (Reinforcement). He was credited with 3 years, 9 months, and 9 days of active service during this period. 15. Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) implements Department of Defense policy governing retention, reenlistment eligibility, and service requirements in accordance with the U.S. Code. Chapter 8 provides policy, procedures, and guidance for administration of the USAR Reenlistment Program for AGR personnel. As part of the procedures for a Soldier requesting continuation on active duty, the Soldier submits a DA Form 4187 through normal command channels to the Personnel Service Activity, indicating his or her reenlistment intentions and attached an Enlisted Record Brief, DA Form 705 (must be within 9 months of reenlistment), and physical examination, and sends the packet to the local commander. The commander will indicate approval or disapproval and send the packet to the servicing reenlistment activity. The Personnel Service Activity will simultaneously send the documents to the Commander, HRC. The commander's recommendation will be supported. If a Soldier is deemed ineligible for AGR tour renewal, the Soldier will be processed for discharge at ETS per Army Regulation 635-200. 16. Army Regulation 140-30 prescribes policies and procedures for selecting, assigning, utilizing, managing, and administering USAR personnel serving on full-time active duty in an AGR status in support of the USAR. a. AGR Soldiers may be released involuntarily from active duty at any time in accordance with Army Regulation 635-200. 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 REFRAD * 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 troop program unit or another control group b. 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 under the provisions of Army Regulation  635-200 for enlisted Soldiers. AGR Soldiers who are qualified for Reserve retirement (other than active duty) may apply under Army Regulation 135-180 (Retirement for Non-Regular Service). Soldiers covered by the retention provision of Title 10, U.S. Code, section 1163(d), and are within 2 years of becoming eligible for military retirement will be retained on active duty until they qualify for retired or retainer pay unless their REFRAD is voluntary or approved by the Secretary of the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his records to show approval of his request for continuation in the AGR Program was carefully considered. 2. He submitted a DA Form 4187 requesting continuation in the AGR Program that his company commander initially signed on 21 February 2014, recommending approval. It is unclear whether this document wherein the company commander initially recommended approval was submitted through the complete chain of command with the favorable recommendation. 3. It is clear that on 24 February 2014, the remarks portion of the DA Form 4187 was amended to show his company commander reconsidered his earlier recommendation and now recommended disapproval of the requested action, recommended the applicant's removal from the AGR Program, and requested a 90-day extension to his then current contract to allow him to prepare for transition. The company commander digitally signed the document, showing his concurrence with the new statements and the new recommendation of disapproval. The battalion and group commanders each concurred with the company commander's recommendation. 4. This recommendation was supported by documented counseling statements, an NCOER showing APFT failure, a lengthy memorandum to HRC, and was endorsed by the entire chain of command, as evidenced by their signatures on the DA Form 4187 and their signed memoranda indicating they did not support his continuation in the AGR Program. These documents clearly indicate the intentions of the chain of command were to recommend disapproval of the request. 5. HRC concurred with the recommendations of the chain of command based on the documentation provided and deemed the applicant's failure to meet Army standards and poor duty performance did not merit approval of his request for retention in the AGR Program. 6. There is no mandate that his chain of command inform him or obtain his consent prior to making their own recommendations and comments on his DA Form 4187. There is likewise no regulatory mandate that his request for continuation in the AGR Program beyond his initial contractual obligation be favorably considered by his chain of command or HRC. 7. At the time of his request, he was credited with just over 16 years and 7 months of active Federal service, falling considerably short of the requisite 18 years of active Federal service to be granted sanctuary or retention on active duty until he qualified for retirement. 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 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) AR20150005113 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005113 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1