IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20170018196 APPLICANT REQUESTS: * In effect, adjustment of his Non-Regular retirement points to show a full 20 years of qualifying service, vice the current 12 years and 1 day * Assuming the Board grants his request for additional qualifying years, the applicant requests, in effect, the issuance of a "20-Year Letter" (Notification of Eligibility for Retired Pay at Age 60) * In effect, correction of his record to show Non-Regular retirement from the U.S. Army Reserve (USAR) (i.e. transfer to the Retired Reserve), vice discharge * In effect, authorization for USAR Enlisted Standby Advisory Boards (STAB) to consider the applicant for promotion to those grades for which he would have been eligible, had he not been discharged * Retroactive payment of all pay and allowances for which he would have been entitled, had he not been discharged * Upgrade of his general discharge under honorable conditions to honorable * Any other changes to the applicant's service record that the Board may deem appropriate APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Discharge Review Board (ADRB) Case Report and Directive * Kuwait Residency Permit * Congressional Research Service Report, Kuwait: Governance, Security, and U.S. Policy * Photo of an envelope * Separation Authority letter of applicant * Rank reduction order * Discharge Order * Letters from Members of Congress * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. On behalf of the applicant, counsel states: a. The facts of the applicant's case are as follows: (1) On or about 29 August 2006, when the Army issued the applicant active duty mobilization orders, he was a U.S. Army Reserve (USAR) Soldier assigned to the Individual Ready Reserve (IRR); at the time, he was living and working in Kuwait as a U.S. government contractor. The private company for which he worked had been formed under German law and was partnered with a large U.S. corporation; the applicant's role was to oversee the instruction of the company's technicians as to the overall maintenance requirements for government ground vehicles being used by the U.S. Army in Kuwait. (2) Also in the August 2006 timeframe, U.S. Forces in Kuwait were operating under frequent terrorist attacks, and the U.S. Embassy issued numerous alerts regarding dangerous road conditions. As a result, the applicant's employer denied the applicant certain permissions that would have otherwise allowed him to travel freely, and included restrictions on traveling back to the U.S. pursuant to his mobilization orders. As a civilian contractor, the applicant did not have CAC (Common Access Card) access to military installations, nor was he allowed to use military air travel; an additional factor was that the applicant could not afford to pay for a flight from Kuwait to the United States. (3) On multiple occasions, the applicant telephoned his USAR command (the U.S. Army Human Resources Command (HRC)) and expressed his inability to comply with his mobilization order; the applicant could have either met his USAR unit in Iraq or returned home, but he first needed travel orders. Despite the applicant's requests, HRC refused to issue him travel orders, directing him instead to submit a delay and exemption (D&E) request. The applicant complied and sent HRC his D&E request; he frequently followed-up, but HRC never took action on his request and instead chose to initiate separation action against him. (4) On 21 December 2007, the applicant's commander recommended him for separation; on 5 August 2008, the commander's notification letter was mailed to the applicant's last known address. The applicant did not receive the notification letter until 24 November 2008, which was after the separation authority had already approved both the applicant's separation and his rank reduction. (5) The applicant submitted a request for upgrade to the ADRB; he then sought the assistance of his U.S. Congressional Representative to facilitate the processing of his request. The applicant personally appeared before the ADRB on 23 July 2012, and the ADRB upgraded his character of service from under other than honorable conditions to general under honorable conditions. Following the ADRB's consideration of his case, the applicant asked another U.S. Congressman to help, but the Congressman told the applicant there was nothing he could do; nonetheless, the applicant has continued to diligently seek relief. (6) The applicant is a highly decorated war Veteran with multiple honorable tours in his history. The original copies of the applicant's employment contract with the private company have been destroyed, in accordance with Department of Defense (DOD) policy; however, the ADRB may still have a copy on file. b. Counsel maintains the applicant's separation was wrongful because, by failing to provide proper notice of the pending separation action, the Army violated the applicant's Constitutional right to due process. In addition, the applicant's leadership in HRC did not comply with the requirements of the Servicemembers' Civil Relief Act (SCRA); this law protects Soldiers against default judgments. Counsel contends the applicant's SCRA protections took effect on 29 August 2006, "when his (active duty) orders were issued and received." c. Counsel further argues the ADRB's decision was improper. (1) The ADRB erred when its analyst inappropriately applied the presumption of regularity, stating the ADRB should presume the applicant did not request a hearing before an administrative separation board despite overwhelming evidence to the contrary. (2) Additionally, the ADRB failed to properly apply the standards outlined in 32 CFR (Code of Federal Regulations) 70.9 (c)(3)(ii)(C). (The CFR is a codification of the administrative law governing Federal agencies. The rules and regulations addressed in 32 CFR are taken from Title 32 (National Defense), U.S. Code; Part 70 (Discharge Review Board (DRB) Procedures and Standards) provides guidance to each of the military services regarding the operation of their respective DRBs). (a) Counsel quotes portions of section 70.9 (Discharge Review Standards – Equity – Capability to Serve, as evidence by factors such as: Arbitrary and Capricious Action)), essentially noting the objective of a DRB review is to examine the propriety and equity of an applicant's separation and to effect changes when deemed necessary. (b) With regard to equity, counsel points to that part of the provision that states, in effect: even if the DRB finds the applicant's discharge was otherwise proper and equitable, it can still grant relief when it determines actions taken by individuals in authority, though not amounting to prejudicial error, were clearly abusive and those abusive actions contributed to the separation authority's discharge decision or the character of service ultimately issued to the applicant by the separation authority. (c) Counsel asserts the DRB's noncompliance with 32 CFR is evidenced by the fact that it did not properly consider the arbitrary and capricious actions of individuals in authority; specifically, individuals in authority failed to: * provide the applicant his constitutionally guaranteed right of due process * implement the applicant's SCRA protections * offer the applicant travel orders from Kuwait * take the necessary steps to modify the applicant's address of record so as to facilitate the delivery of travel orders * comply with Army regulations, which mandate that Soldiers who are under consideration for separation must first be given adequate notice before any decision is made to terminate the Soldier's employment d. Counsel contends HRC failed to process the applicant's D&E request; this was acknowledged by the ADRB and amounted to negligence; per 32 CFR 70.9(c) (Discharge Review Standards – Equity), the failure to act on the D&E request should be viewed as proof of the arbitrary and capricious actions taken against the applicant by his leadership; their actions constituted an abuse of discretion. 3. Counsel provides documents from the applicant's official military personnel file (OMPF), a copy of the ADRB Case Report and Directive pertaining to the applicant, a congressional report regarding Kuwait, and the applicant's Kuwait Residency Permit. In addition, counsel submits a picture of an envelope, presumed to have been sent by HRC to the applicant when he was in Kuwait (the return address has been torn off). The envelope lists a crossed-out APO address, with a handwritten APO address next to it; the envelope's mailing date is 5 August 2008, and the envelope displays an APO stamp, dated 24 November 2008. 4. The applicant's service records show: a. The applicant was 56 years of age on his last birthday. After an initial enlistment into the Regular Army and subsequent service in the USAR, the applicant enlisted into the Regular Army on 14 September 1988. On 10 October 1990, he deployed with his unit to Southwest Asia and redeployed on 17 April 1991. On 14 June 1996, the applicant was honorably discharged due to completion of his required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 9 months, and 1 day of net active duty service, with 3 years, 3 months, and 25 days of prior active service and 7 months and 22 days of prior inactive service. He was awarded or authorized: * Army Lapel Button * Army Commendation Medal (2nd Award) * Army Achievement Medal (3rd Award) * Navy Meritorious Unit Commendation * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Southwest Asia Service Medal with 3 bronze service stars * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Navy and Marine Corps Expeditionary Medal * Kuwait Liberation Medal-Saudi Arabia * Kuwait Liberation Medal-Government of Kuwait * Combat Infantryman Badge * Expert Infantryman Badge * Expert Marksmanship Qualification Badge with Rifle Bar b. On 14 June 1996, the applicant enlisted into the USAR. Effective 1 January 1999, HRC promoted the applicant to sergeant first class (SFC)/E-7. On 24 September 2002, the applicant transferred to the Individual Ready Reserve (IRR). c. On 29 March 2006, the applicant reenlisted in the USAR for an indefinite term. As part of his reenlistment, he signed a DA Form 3540 (Certificate and Acknowledgment of USAR Service Requirements and Methods of Fulfillment), in which he affirmed the following: * He was required to keep the Commander, U.S. Army Reserve Personnel Center (HRC) advised of his current mailing address * He would reply to and comply with all official orders and correspondence * Failure to meet these requirements could cause him to be declared an unsatisfactory participant, which could result in separation from the USAR, reduction in rank, and issuance of an other than honorable conditions character of service d. On 15 June 2006, the applicant contacted HRC, providing an updated address and giving a current cellphone number; the address update reflected a change from an APO Army Europe (AE) address to one in North Carolina. e. On 29 August 2006, HRC published Orders Number M-08-601815, relieving the applicant from the IRR and ordering him to report, not later than 5 November 2006, to Fort Jackson, SC for a period of active duty not to exceed 25 days; the purpose was to complete mobilization processing, and the authority was Title 10, U.S. Code, section 12302 (Ready Reserve). On 6 November 2006, the Department of the Army Deputy Chief of Staff, G-1 advised HRC the applicant had failed to report on 5 November 2006. f. The below-listed information is taken from notes, created on or about the dates indicated and available on HRC's Soldier Management System (SMS). (SMS is a web- based collection of data, applications, and tools to assist Human Resources personnel; the applicant also has access to this SMS information): (1) On 7 November 2006, HRC's Mobilization Accountability Assurance Team (MAAT) called the applicant at the cellphone number he had provided on 15 June 2006; the applicant did not answer the phone, and MAAT left a message. On 20 November 2006, MAAT emailed the applicant at two of the email addresses listed in his service record; he did not respond. That same date, MAAT also sent a certified letter, return- receipt-requested, to the address provided by the applicant on 15 June 2006; on 27 November 2006, the return-receipt was signed by someone other than the applicant. (2) Between 13 December 2006 and 5 January 2007, the MAAT tried five more times to reach the applicant by phone; in each instance, the applicant did not answer, and MAAT left messages. On 13 January 2007, the applicant called the HRC Call Center, stating he was working in Kuwait as a government contractor; he had recently received his mobilization orders and requested a D&E (delay and exemption). The HRC Call Center Human Resources specialist created a D&E checklist and forwarded the applicant's information to the D&E section. On 2 March 2007, MAAT confirmed with HRC's D&E team that the applicant did not have an active D&E request being processed; MAAT then emailed the applicant requesting that he call. (3) On 5 March 2007, the applicant emailed MAAT. He indicated he would be sending MAAT a letter from his employer regarding the applicant's job in Kuwait; on 6 March 2007, the applicant forwarded his employer's letter. MAAT responded, stating, before the D&E section could open a case, the applicant would first have to agree to HRC's proposed reporting date of 15 April 2007. The applicant wrote back, stating that he had previously worked in Kuwait between September 2005 and May 2006, then was in Germany from July to the beginning of October 2006; starting 13 October 2006, he was working once again in Kuwait. The applicant indicated he believed the foregoing information should be sufficient justification for an exemption. MAAT responded by reaffirming the need for the applicant to first accept the 15 April 2007 reporting date; if the applicant agreed to the date, his orders would be amended, and he would be permitted to correspond with the D&E section. MAAT also requested the applicant's Kuwait telephone number. (4) In a 20 March 2007 email, the applicant noted there was a big time difference between Kuwait and the U.S.; he nonetheless fully expected the approval of his request for exemption due to the mission-essential nature of his employment. The applicant gave both his Kuwait telephone number and mailing address (the mailing address he gave does not match either of the addresses listed on the envelope submitted by the applicant as evidence). MAAT's email response advised the applicant that his proposed reporting date was now 22 April 2007, and reiterated the importance of the applicant's acceptance of the aforementioned date; failure to accept the date would cause the applicant to be deemed a "Failure to Report as Ordered" (FTRO). (5) On 30 March 2007, after getting no response from the applicant, MAAT sent another email, stating, "[applicant], I am sending this message to you concerning your reporting date. I will have no choice but to recommend you for FTRO if I do not receive any word from you in the next 3 days." On 2 April 2007, the applicant emailed the following: "Hello, long time and no hear from you!!! I find that unbelievable. I am deployed in Kuwait working, as you know, in direct support of the U.S. Army. If accepting a report date is essential to processing my exemption, then that is what has to be done, as I mentioned in my last email." MAAT's responded, "At the present time, I have 6 May 2007 as your next report date; do you accept this date? Understand, the next process will be for you to contact D&E at [telephone number] to open a case for exemption under Key Employee status." (6) On 3 April 2007, the applicant emailed HRC, stating, "You know, I called them (D&E) in January and they haven't called back; they have my number, this is fine. Plus, I am a U.S. citizen (and) a resident of Kuwait since 2005. I do not see that the reserve group has any jurisdiction over me from North Carolina. I haven't lived in North Carolina; that is my father's home. And my home is [a European country] with my wife since 2000." The applicant continued, arguing the Army had kicked out many good Soldiers, and that many of the Army's support positions had since gone to the civilian sector. He felt maintenance was "top of the list," and he attached a word document, which described all the things he had done for the Army, and for which he had received no recognition. He added that he had not participated in USAR training since 1999, had sustained injuries while in Iraq 2 years earlier, and his wrists were now only "about 70%." He ended the email stating, "Anyways, I read the regulation/AR and know I am exempt." (7) On 6 April 2007, MAAT sent the applicant an email, stating, "[applicant], there seems to be some confusion. Before you can start a D&E case, you must first agree to a report date. Then, if you have an issue, D&E will assist you; they will not extend or delay your report date or accept your case without a report date. Please understand, without you accepting the report date of my previous email, I will not have any choice but to recommend you for FTRO; please contact me ASAP." The applicant responded on 9 April 2007 and affirmed he was accepting the 6 May 2007 reporting date. He also told MAAT that he had received the warning letter and the mobilization order; MAAT noted the applicant's affirmation constituted a first-time notification due to the system having a bad address; the applicant again provided his address in Kuwait (same address given by the applicant on 20 March 2007). In his email, the applicant wrote, "Thanks, I will email (the D&E section) and see how the D&E thing goes, shouldn't be any problem, this sort of thing is pretty routine these days." (8) On 10 April 2007, a representative from HRC's D&E team emailed the applicant a copy of the documents required for a D&E exemption and gave the applicant until 24 April 2007 to complete, sign, and return the documents. On 11 April 2007, the D&E representative emailed the applicant a copy of a Key Employee memorandum and stated the applicant's employer had 30 days (until 9 May 2006, i.e. 30 days from initiation of contact) to complete and return this memorandum; D&E also noted in the applicant's file that the applicant had sent a signed exemption memorandum, along with an explanatory letter. Although the explanatory letter described the applicant's living and employment situations, the letter did not include enough detail to justify the applicant's exemption based on "extreme personal hardship." As a result, the D&E section did not open a case. (9) On 20 April 2007, the D&E section received correspondence from the applicant's employer indicating the employer sought to open a "Key Employee Case." Because of the short timeframe (the applicant's current reporting date was then 6 May 2007), the D&E section opened a case on behalf of the applicant's employer and requested a delay of the applicant's reporting date. The D&E section informed the applicant his employer would need to coordinate directly with the Office of the Under Secretary of Defense (USD) for approval of the applicant's status as a Key Employee. On 26 April 2007, HRC amended the applicant's mobilization orders to show a reporting date of 10 June 2007. (10) On 16 May 2007 (7 days after the employer's suspense date), USD indicated the applicant's employer had not submitted any documentation to support the designation of the applicant as a Key Employee; as a result, the Key Employee case was withdrawn, and a notation was made in the applicant's file stating the case would only be reopened at the direction of the USD. On 10 June 2007, the applicant failed to report for mobilization. On 19 July 2007, the MAAT recommended the initiation of separation proceedings against the applicant for FTRO. f. On 21 December 2007, the applicant's commander advised the applicant in writing of her intent to separate him for misconduct under the provisions of paragraph 12-1c (Commission of a Serious Offense), Army Regulation (AR) 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations). The commander initiated this action based on the applicant's failure to comply with the order to report for active duty. g. On 18 February 2008, a representative of HRC's Personnel Services Division (PSD) prepared an Affidavit of Service by Mail, which indicated, on 27 December 2007, the commander's notification of separation action was mailed to the applicant at the Kuwait address he had previously provided, first on 20 March and then on 9 April 2007. On 13 August 2008, the PSD representative prepared another Affidavit of Service by Mail showing, on 4 August 2008, the commander's notification of separation action was again mailed to the applicant; the address listed in the affidavit matches the one shown as cross-out on the photographed envelope provided by the applicant as evidence. h. On 10 September 2008, the separation authority approved the commander's separation recommendation and directed the applicant under other than honorable conditions discharge; the separation authority further ordered the applicant's reduction in rank from SFC to private/E-1. i. On 24 September 2008, the applicant provided HRC his updated address; this updated address matches the handwritten address on the photographed envelope. j. On 7 November 2008, the applicant called HRC requesting a copy of his discharge proceedings and asked about submitting an appeal. k. The applicant's DA Form 5016 (Chronological Statement of Retirement Points) reflects, as of his last day of service (15 September 2008), he had accumulated a total of 4,286 points, which equates to 12 years and 1 day of qualified service for Non- Regular retired pay. The form also shows, from the start of his USAR enlistment in 1996 until his discharge in 2008, he never accrued more than 40 points in any single year of service; for his last 6 years in the USAR, he accrued only membership points (i.e. 15 points each year; to be considered qualified for Non-Regular retired pay, the USAR Soldier must accumulate a total of 50 points per year). l. On 5 December 2011, the applicant petitioned the Army Review Boards Agency for an upgraded character of service, as well as a personal appearance; the ADRB addressed his request. (1) The applicant argued, although he applied for a D&E exemption, he was never told the outcome of his request. On 24 November 2008, he received his commander's notification of separation proceedings; the notification was dated 21 December 2007, but was not mailed until August 2008. The applicant remarked that it seemed odd that the notification was mailed "after my time to appeal"; the applicant later clarified that he was referring to the period of time he would normally have been permitted to respond to the notification (by providing his election of rights). The applicant also questioned why he never received a plane ticket (presumably so he could fly from Kuwait to the mobilization site). (a) He believed his rank reduction and discharge were unjust because HRC never gave him a record of the board proceedings. He also had not received orders, and was never provided an offer to take another GS-12 USAR Unit Administrator Supervisor position; he felt personally and professionally disrespected. (b) The applicant explained he was hired for a Unit Administrator Supervisor position in 2000, but it took until November 2001 for him to obtain his Secret security clearance; despite numerous inquiries, he never received orders for this position. He maintained, if that position was later filled, he should then have been offered another job. When he called to ask what happened, they told him the position no longer existed; the applicant questioned how this was possible. He felt he had been given "the run around the entire time." (c) The applicant contended, as a result of the foregoing circumstances, he lost out on two careers with great retirements. As of the date of his application, 10 years had passed; at a minimum, he asserted, he would have become a GS-15 and a command sergeant major, or perhaps even an officer. He affirmed he needed compensation, but it was not possible to reverse time. (d) In support of his application, the applicant provided documents from his OMPF; he also included a letter, dated 3 December 2007, from the Life Cycle Management Command and Fort Monmouth, Fort Monmouth, NJ, which stated the applicant was a mission-essential employee of a subcontractor who, in turn was working for a large government contracting firm (not the firm named by the applicant's counsel in the current ABCMR application). The letter authorized the applicant to travel, in support of the IED (improvised explosive device) Defeat Program, to five Middle Eastern countries, during the period 3 December 2007 to 23 September 2008. The letter requested the applicant be issued CAC and Geneva Convention Cards, granted access to military facilities, and allowed to travel on government transportation for official government business. The letter further stated the applicant should be "considered as 'Key Personnel, Department of the Army Civilian" in connection with 'Non-Combatant Evacuation Orders' at the civil service grade indicated (GS-12)." (2) In the ADRB Case Report and Directive, the analyst noted, after careful review, there were no mitigating factors that would warrant an upgraded character of service. By failing to comply with his mobilization order, the applicant had diminished the quality of his service. In addition, while the applicant had submitted a request to delay his reporting date, the record showed the case was closed due to a lack of response from the applicant. In response to the applicant's claim that he was not given sufficient time to respond to the notification, the analyst wrote that he was "unable to determine whether (the applicant's contention had) merit because the applicant's election of rights form (was) not part of the available record and the analyst presumed government regularity in the discharge process." The analyst continued, stating, "Additionally, there is insufficient evidence available in the official record to make a determination whether or not he requested appearance before an administrative separation board. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. The applicant's statements alone do not overcome the presumption of government regularity in this case." (3) On 23 July 2012, the applicant personally appeared before the ADRB without counsel. After hearing testimony and examining documentary evidence, the ADRB determined the reason for the applicant's discharge was proper and equitable, but the characterization of service was too harsh. The ADRB voted to upgrade the applicant to a general discharge under honorable conditions; with this upgrade, the applicant's rank was restored to SFC. 5. Counsel's version of the events leading to the applicant's separation is at variance with evidence of record. a. Issue 1 – counsel argues the applicant was wrongfully separated from the USAR in that he did not receive proper notice of his separation proceedings; this violated the applicant's constitutional right to due process. In Issue 2, Counsel extends his Issue 1 contention by claiming, under the SCRA, the applicant was entitled to actual notice of his separation proceedings (referring to protections from default judgments) prior to a separation decision being rendered. (1) During the applicant's era of service, members of the USAR IRR were required to keep HRC advised of their current mailing address and to remain ready to report for active duty upon notification. Failure to fulfill these requirements made them subject to separation under other than honorable conditions based on unsatisfactory participation. There were provisions in Federal law and Army regulation for USAR Soldiers to be exempted from mobilization, but they were nonetheless expected to comply with orders, even when exemption requests were still in-process. Additionally, only employers could submit exemption requests when the employer deemed the USAR Soldier to be a "Key Employee"; at the time, employers were to directly coordinate all such requests with the USD, and the employer was typically expected to have submitted such an exemption request prior to mobilization orders being issued. Per 32 CFR, once mobilization was ordered, "no deferment, delay, or exemption from mobilization shall be granted to Ready Reservists because of their civilian employment." (2) Those Soldiers who failed to comply with mobilization orders were considered to have committed serious misconduct, and became subject to separation under chapter 12 (Misconduct), AR 135-178. Because the available character of service for a misconduct discharge was under other than honorable conditions, commanders were mandated to use the Administrative Board Procedure, outlined in chapter 3 of the separation regulation. Section III (Separation Using the Administrative Board Procedure) stated commanders would notify the Soldier in writing of the following: (a) The basis of the proposed separation, whether the action could result in discharge from the Army, and the least favorable character of service the Soldier might receive. (b) Soldiers had the following rights: * consult with counsel * obtain copies of all documents relevant to the separation * request a hearing before an administrative separation board * have representation by counsel before the administrative separation board * submit a conditional waiver, wherein the Soldier would agree to waive the administrative separation board on the condition the separation authority would approve a character of service higher than under other than honorable conditions (b) In addition, commanders had to make reasonable efforts to ensure the Soldier received the notification memorandum; if the Soldier could not be contacted or refused receipt acknowledgement, the notification memorandum was to be sent via certified mail with a return receipt requested, and the individual mailing the notification had to prepare an Affidavit of Service by Mail. If the Soldier failed to respond within 30 calendar days, his/her inaction constituted a waiver of rights. (3) As to counsel's assertion to the applicant's SCRA protections, as they may have pertained to the applicant's separation proceedings: (a) The SCRA is a provision of Federal law under Title 50 (War and National Defense), U.S. Code; its intent is to provide civil protections for service members in the event their military service impedes their ability to meet financial obligations. It applies to any civilian judicial or administrative proceedings related to rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, automobile leases, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, and income tax payments. USAR Soldiers are eligible for SCRA protections effective the date they receive active duty orders. (b) Enlisted administrative separations fall under Title 10, U.S. Code, which authorizes the Secretary of the Army to prescribe standards and qualifications for the retention of Reserve Component members; when those members fail to comply with the standards and qualifications prescribed, the law permits the Secretary of the Army to terminate their enlistments. (4) Counsel asserts, based on HRC's presumed knowledge that the applicant was a civilian contractor working for DOD, HRC should have been able to find his location with minimal due diligence. (a) HRC's mission is to manage "Soldiers" not "DoD Civilians," and it relies on the data maintained in the system of record (SMS and the Soldier's OMPF) to identify a Soldier's availability and location; this system, in turn, depends on the Soldier to exercise due diligence in providing regular and timely updates as to his/her address. The system of record reflects the diligence exercised by the applicant's career management branch, his retention branch, and the MAAT team in their efforts to locate and communicate with the applicant. (b) The evidence of record further affirms the applicant was both aware of how to properly report address changes and the procedure he needed to be follow in order to update his address; this is evidenced by address and contact information updates he submitted as early as 2004. The available evidence further shows the applicant told HRC he had been living in Kuwait since 2005; however, the address updates he provided on 15 June 2006 (North Carolina), and then respectively on 20 March 2007 and 9 April 2007 (each showing the same APO address, but different than those listed on the photographed envelope), were all proven to be inaccurate. (c) While AR 135-178 required commanders to make reasonable efforts to ensure Soldiers being considered for separation received the commander's notification memorandum, where Soldiers failed to respond within 30 calendar days, the Soldier's inaction was deemed a waiver of his/her rights. As noted above, the system of record shows a multitude of unsuccessful attempts to notify and/or deliver official documents to the applicant as a result of the inaccurate address and/or contact information the applicant had previously given. (4) Counsel provides a photograph of an envelope showing a mailing date of 5 August 2008, and an APO stamp indicating receipt on 24 November 2008; the evidence of record confirms the applicant did not advise HRC of this updated APO address until 24 September 2008 (after the separation authority approved the applicant's separation). b. Issue 3 – counsel contends the ADRB erred in its review of the applicant's case, in that the ADRB analyst improperly applied the presumption of government regularity by presuming the applicant had failed to request a hearing before an administrative separation board, despite "overwhelming evidence to the contrary." Counsel argues the presumption of regularity applies to government actions, not to actions allegedly performed, or not performed by an applicant. (1) To support this argument, counsel points to the ADRB analyst's statement in the Case Report and Directive, wherein the analyst wrote he/she "(was) unable to determine whether these contentions (specifically, the applicant's claim of not receiving proper notice) have merit because the applicant's election of rights form is not part of the available record, and the analyst presumed government regularity in the discharge process. Additionally, there (was) insufficient evidence available in the official record to make a determination whether or not (the applicant) requested appearance before an administrative separation board." (a) The ADRB analyst clearly states the presumption of regularity has been applied to "the discharge process." (b) The ADRB analyst's role is to state available facts, provide the legal basis for separation, and submit a recommendation to the ADRB as to whether relief should or should not be granted; the ADRB is under no obligation to follow the analyst's recommendations. In this case, the analyst wrote, he/she "determined that the reason for discharge and the characterization of service remains both proper and equitable and recommends to the Board to deny relief." (2) The applicant personally appeared before the ADRB and, after hearing the applicant's testimony and reviewing documentary evidence, the ADRB elected to upgrade the applicant's character of service to general under honorable conditions, contrary to the analyst's recommendation. c. Issue 4 – the ADRB failed to properly apply 32 CFR when it failed to consider the "arbitrary and capricious actions of individuals in authority." Counsel contends, "the failure to provide constitutional rights of due process as explained above, failure to implement SCRA protections as explained above, failure to provide travel from [the applicant's] APO address in Kuwait, or take necessary actions to modify his record address to facilitate such orders, and a blatant disregard of a U.S. Army regulations that mandate adequate notice be provided to a service-member prior to a decision to terminate employment of a service-member." Counsel additionally argues, in Issue 5, that HRC failed to process the applicant's D&E request. (1) The applicant's mobilization order included: a travel authorization, instructions for requesting travel, and a toll-free number, so the applicant could telephonically make flight arrangements from Kuwait to the mobilization site. Additionally, the system of record affirms the applicant had the ability and information he needed to directly contact the MAAT and/or D&E team at any point prior to his separation; based on the notes entered into SMS at the time, the applicant failed to notify HRC of any issues, concerns, financial hardships, or travel restrictions he was experiencing that would have prevented him from complying with his mobilization orders. (2) Regarding counsel's assertion HRC accepted the applicant's D&E request but failed to take appropriate action, contemporary SMS notes reflect the attempts made by the MAAT and D&E sections to contact and support the applicant's request for an exemption. These efforts started from 13 January 2007, when the applicant first called HRC; specifically, on: * 13 January 2007 – applicant called the HRC Call Center with questions about his involuntary mobilization; the applicant requested a D&E, and the HRC Human Resources specialist forwarded his request to the D&E section * 9 April 2007 – after finally accepting a 6 May 2007 [4 months] reporting date, MAAT advised the applicant to contact HRC's D&E team and provided him a direct point of contact * 10 April 2007 – the D&E point of contact provided the applicant an exemption memo and advised the applicant to sign the memo and provide details in support of his request for exemption * 11 April 2007 – the applicant submitted documents but they lacked specific details; the point of contact advised the applicant of this, submitted the applicant's documents for review, reiterating "if he [the applicant] had any other issues pertaining to mobilization to contact him" * 12 April 2007 – D&E reviewed the applicant's exemption request and noted information describing extreme personal hardship was missing; team call center sent the applicant "key employee" documentation with instructions and requested the applicant be more specific * 20 April 2007 – D&E opened a case based on a request from the applicant's employer, indicating it appeared the applicant's employer was seeking a "key employee" exemption for the applicant * 23 April 2007 – D&E requested a 35 day administrative delay for the applicant's mobilization report date and informed the applicant his employer needed to coordinate directly with USD by 9 May 2007 regarding the applicant's "key employee" exemption * 16 May 2007 – D&E closed the applicant's "key employee" request after USD indicated the applicant's employer failed to provide "key employee" documentation; the applicant was to be contacted, advised of his case disposition, and required to report to his mobilization site (3) AR 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty), in effect at the time, provides USAR Soldiers whose requests for exemption had either not yet been approved or were disapproved as of the movement date, and for whom no administrative delay had been authorized by the appropriate approving authority, were still required to report to active duty. 6. Counsel's requests the Board show the applicant accumulated sufficient points to qualify for a USAR Non-Regular retirement; in effect, issue the applicant a 20-Year Letter; and transfer the applicant to the Retired Reserve. By the time the applicant was separated, he had earned a total of 4,286 points (12 years and 1 day); most of those points were the result of the applicant's more than 11 years of active duty service. a. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states a qualifying year of service for Non-Regular retired pay is a full year during which a USAR Soldier is credited with a minimum of 50 retirement points; the accumulation of 20 such years is one requirement that must be fulfilled to qualify for Non-Regular retired pay. AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states Soldiers may be transferred to the Retired Reserve, upon request, when they have accumulated 20 or more qualifying years of service and are eligible to be issued a 20-Year letter. b. None of the applicant's USAR service is creditable toward a Non-Regular retirement; the applicant never accumulated more than 40 retirement points in any single year of his USAR service, and, during his last 6 years in the USAR, he only accrued the 15 membership points granted annually by the USAR. 7. Counsel's request for SSB promotion consideration and back pay are contingent on the Board granting the applicant credit for additional USAR service. 8. In reaching its determination, the Board can consider the applicant’s petition, his supporting evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his release from active duty, enlistment and reenlistment in the USAR and his orders to report for mobilization processing. The Board considered the address change the applicant provided HRC, his employment, his multiple report dates and the correspondence related to HRC's Mobilization Accountability Assurance Team (MAAT) contact or contact attempts with the applicant and that related to D&E Section requests. The Board considered the separation actions as a result of the absence of evidence showing he reported to the mobilization site or that he was granted relief from reporting. The Board considered the applicant’s appearance before the ADRB and his upgraded discharge. The Board considered that USAR Soldiers are eligible for SCRA protections effective the date they receive active duty orders. The Board found insufficient evidence to determine the applicant was in receipt of active duty orders, that he accumulated sufficient qualifying service to be eligible for a non-regular retirement or that he met eligibility requirements in order to qualify for consideration by a USAR Standby Advisory Board. Based on a preponderance of evidence, the Board determined that the applicant’s separation and the character of service reflected upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 32 CFR, Chapter 1 (Office of the Secretary of Defense), Subchapter D (Personnel, Military and Civilian), Part 44 (Screening the Ready Reserve), all members of the Ready Reserve are required to be immediately available for active duty upon mobilization under Title 10, U.S. Code, section 12302. After such a mobilization has been ordered, no deferment, delay, or exemption from mobilization will be granted based on civilian employment. The Deputy Secretary of Defense is responsible for adjudicating, before mobilization, any conflicts between mobilization manpower needs and the needs of the civilian sector; Non-Federal employers of Ready Reserve Soldiers who determine their employee is in a key position should promptly report that determination, via a letter format given in the CFR, to the appropriate Reserve Personnel Center and request the removal of the employee from the Ready Reserve. 3. AR 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in effect at the time, stated, in order to be considered satisfactory participants, IRR Soldiers had to promptly report any changes of address to HRC (not later than 45 days from the date of the change) and to comply with the requirements imposed by HRC. Unless excused by proper authority, IRR Soldiers were deemed unsatisfactory participants when they failed to comply with a second notice, sent via certified mail. 4. AR 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty), in effect at the time, stated, during partial mobilization, Reserve Component members could be exempted from mobilization only due to extreme personal hardship, extreme community hardship, temporary medical disqualification, or administrative reasons (e.g. delays due to processing; applied to officers participating in an officer procurement program). a. The regulation made no provision for IRR Soldiers whose employers determined he/she held a key position. b. Individuals whose requests for exemption had either not yet been approved or were disapproved as of the movement date, and for whom no administrative delay had been authorized by the appropriate approving authority, were still required to report to active duty. 5. Title 10, U.S. Code, section 12641 (Standards and Procedures: Secretary to Prescribe) states the Secretary concerned (i.e. Secretary of the Army) shall, by regulation, prescribe the standards and qualifications for retention of Reserve Component members; if those members fail to comply with the standards and qualifications prescribed, they may have their enlistment terminated. 6. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states a qualifying year of service for Non-Regular retired pay is a full year during which a USAR Soldier is credited with a minimum of 50 retirement points; an accumulation of 20 such years is one requirement necessary to qualify for Non-Regular retired pay. 7. AR 135-180 (Retirement for Non-Regular Service), currently in effect, states, to be eligible for Non-Regular retired pay, the USAR Soldier must have attained the minimum age of 60 and accumulated no less than 20 years of qualifying service. Under Title 10, U.S. Code, section 12731a, USAR Soldiers who have accrued the necessary number of qualifying years will be issued a 20-Year Letter and permitted to make a Reserve Component Survivor Benefit Plan election. 8. AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Paragraph 6-1 (Eligibility) states Soldiers may be transferred to the Retired Reserve, upon request, when they have accumulated 20 or more qualifying years of service and are eligible to be issued a 20-Year letter. 9. AR 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system. The selection and promotion process for senior enlisted grades SFC through sergeant major is centralized at promotion authority headquarters. Paragraph 4-13 states the Deputy Chief of Staff, G-1 or designee may approve a case for referral to a Standby Advisory board (STAB) when it is determined a Soldier, who was otherwise eligible, did not have the opportunity to have his/her records reviewed by a centralized selection board. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018196 17 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170018196 19 ABCMR Record of Proceedings (cont) AR20170018196 18