IN THE CASE OF: BOARD DATE: 7 November 2022 DOCKET NUMBER: AR20200002414 APPLICANT REQUESTS: reconsideration of his previous request. 1. Removal of unfavorable information related to an Article 15 from his official military personnel file (OMPF); specifically, the: * Contested Article 15 * Suspended punishment * Bar to Reenlistment 2. Revision of his Constructive Service Credit by 1 year and 8 months. 3. Placement on the active duty retired list. 4. As a new request he requests the issuance of a 20-year letter. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-addressed statement, 21 January 2022 * Department of the Army Certificate of Training, 3 July 1975 * U.S. Army Honorable Discharge Certificate, 7 July 1976 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 12 May 1997 * Army Board for Correction of Military Records (ABCMR) letter for Docket Number AR20200002414, 4 November 2021 with excerpt of ABCMR Record of Proceedings (ROP) for Docket Number AR2020000 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2020000 on 27 May 2021. 2. The applicant states that he provided new supporting documents for consideration; specifically: a. His discharge certificate from the USAR to dispute the Board's statement that he was on an IRR status from 4 April 1975 to 7 July 1976. b. A certificate of completion for the Personnel and Administration Course which was a requirement to serve in a clerical position with the 402nd Personnel Division from April 1975 to July 1976. He hopes that his assignment to the 402nd Personnel Division is sufficient to meet the 19 year requirement for a 20-year letter and brought his total military service to 19 years and 3 months. 3. The applicant's service record shows: a. On 9 April 1973, the applicant enlisted in the Regular Army. b. DD Form 214 (Report of Separation from Active Duty), ending on 3 April 1975, shows the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). He completed 1 year, 11 months, and 25 days of net active service. c. Orders Number 02-70687 issued by the Office of the Adjutant General, Reserve Components Personnel and Administration Center, dated 3 February 1977, discharged the applicant from the USAR Ready, effective 7 July 1976. d. On 14 October 1986, the applicant enlisted in the USAR for a period of 3-years. e. DD Form 214, ending on 20 October 1987, shows the applicant was honorably released from active duty training. (1) Item 12a (Date Entered Active Duty This Period) – 29 October 1986. (2) Item 12c (Net Active Service This Period) – 0 years, 11 months, and 22 days. (3) Item 12d (Total Prior Active Service) – 1 year, 11 months, and 25 days. (4) Item 12e (Total Prior Inactive Service) – 10 years, 11 months, and 16 days. f. On 13 May 1991, the applicant reenlisted in the USAR for a period of 6-years. g. DA Form 2-1 (Personnel Qualification Record) shows he served: * in the U.S. Air Force from 8 July 1976 to 13 January 1980 * in the USAR from 14 January 1980 to 13 September 1980 * he again served in the IRR from 14 September 1980 to 31 December 1984 and was transferred to the USAR Control Group * in the USAR from 1 January 1985 to 14 August 1985 * he was in the IRR 15 August 1985 and transferred to the USAR control group * he was honorably discharged on 5 March 1986 h. Orders Number 131-112 issued by the U.S. Total Army Personnel Command, dated 3 September 1991, promoted the applicant to the rank/grade of staff sergeant (SSG)/E-6. i. Orders Number 317-43 issued by the U.S. Total Army Personnel Command, dated 13 November 1995, promoted the applicant to the rank/grade of sergeant first class (SFC)/E-7, effective 1 December 1995. j. DA Form 4187 (Personnel Action) dated 24 June 1996, in which the applicant requested to attend the Advanced Noncommissioned Officer Course (ANCOC). * He was unable to attend the scheduled 24 June 1996 ANCOC due to mediation on 20 June 1996 and the nonavailability of care for his spouse * He requested assistance from the Judge Advocate General regarding his previous request for Troop Program Unit (TPU) ANCOC and local stabilization * He requested extension on the required ANCOC attendance within 1 year as stated on his promotion orders based on the availability of family care services k. Orders Number 185-1, issued by the U.S. Total Army Personnel Command, dated 3 July 1996, revoked Orders Number 317-43, dated 13 November 1995, pertaining to the applicant's promotion to SFC. The additional instructions stated he was administratively removed from the Calendar Year 95 Promotion List. He was granted defacto status for the period covering 1 December 1995 to 23 June 1996 with a date of rank of 3 September 1991. l. On 24 July 1996, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). On or about 23 June 1996, at San Antonio, TX, the applicant failed to go at the time prescribed to his appointed place of duty; the Recruiter ANCOC at Fort Jackson, SC. His punishment consisted of forfeiture of pay for 2 months suspended until 23 January 1997, restriction suspended until 23 January 1997, and extra duty for 45 days suspended until 23 January 1997; he did not appeal his punishment. m. DA Form 2627-2 (Record of Supplementary Action Under Article 15), dated 16 August 1996, vacated the applicant's punishment imposed on 24 July 1996 based on a new offense. On or about 14 August 1996, at Fort Sam Houston, TX, the applicant failed to go at the time prescribed to his appointed place of duty; the Community Mental Health Service, Brooke Army Medical Center. The unexecuted portions of the punishment would be duly executed. n. DA Form 8028-R (USAR Bar to Reenlistment Certificate), dated 17 September 1996, barred the applicant from reenlistment for continuing service as a member of the USAR in any status or category. (1) Service Data: * Total Active Federal Service – 12 years, 1 month, and 8 days * Total Military Service – 23 years, 5 months, and 8 days * Expiration Term of Service (ETS) – 12 May 1997 * Termination Date – 12 May 1997 * Current release from active duty (REFRAD) Date – 12 May 1997 (2) Other Factual and Relevant Indicators of Untrainability or Unsuitability: * No demonstrated potential for future service (Failed to report to place of duty) * Declined attendance to ANCOC o. Headquarters, U.S. Army Recruiting Command, Subject: Bar to Reenlistment, dated 8 January 1997, approved the applicant's bar to reenlistment. p. ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 12 February 1997, shows the applicant's retirement credit for the period covering 9 April 1973 to 13 January 1997: * 16 years, 11 months, and 24 days Qualifying for Retirement * 4598 Total Points Creditable * 23 years and 22 days Total Service for Longevity Pay Purposes q. Orders Number D-04-80078 issued by the U.S. Army Reserve Personnel Center, dated 10 April 1997, discharged the applicant from the USAR/Active Guard/Reserve (AGR), effective 12 May 1997. r. DD Form 214, ending on 12 May 1997, shows the applicant was honorably released from active duty. (1) Item 4a (Grade, Rate or Rank) – SSG. (2) Item 4b (Pay Grade) – E-6. (3) Item 12a (Date Entered Active Duty This Period) – 29 July 1988. (4) Item 12c (Net Active Service This Period) – 8 years, 9 months, and 14 days. (5) Item 12d (Total Prior Active Service) – 2 years, 11 months, and 17 days. (6) Item 12e (Total Prior Inactive Service) – 12 years, 4 months, and 3 days. (7) Item 25 (Separation Authority) – U.S. Army Reserve Personnel Center Orders Number R-05-003178A01, dated 28 July 1988. (8) Item 28 (Narrative Reason for Separation) – Completion of AGR tour. s. DA Form 5016 (Chronological Statement of Retirement Points), dated 24 June 2019 shows the applicant's retirement points for the period covering 9 April 1973 to 12 May 1997: * 229 Inactive Duty Points * 4696 Active Duty Points * 18 years, 3 months, and 23 days Qualifying for Retirement * 5082 Total Points Creditable t. On 27 May 2021 and in ABCMR Docket Number AR2020000, the ABCMR: (1) Denied the applicant's request to: * Remove unfavorable information relating to an Article 15 from his OMPF; specifically, the contested Article 15, the suspended punishment, and the bar to reenlistment * To show Constructive Service Credit of 1 year and 8 months * Placement on the active duty retired list (2) Determined the overall merits of the case were insufficient as a basis for correction. The governing regulation allowed for the transfer of an Article 15 within the OMPF when it served its purpose, but not the removal from the OMPF. The contested Article 15 was filed in the performance section of his OMPF and had not served its purpose. (3) Agreed none of the further requested relief was warranted. 4. The applicant provides: a. Department of the Army, Certificate of Training, dated 3 July 1975, showing the applicant completed the Personnel and Administration Course. b. U.S. Army Honorable Discharge Certificate, dated 7 July 1976. c. ABCMR letter for Docket Number AR202000, dated 4 November 2021, denied the applicant's application. In an excerpt of ABCMR ROP for Docket Number AR2020000, the applicant highlighted, he should have over 19-years of service, the attorney stated the Reserve Component calculated his total points at 5092 with 18 years, 3 months, and 23 days of qualifying service, and in which the Board stated the applicant was assigned to the USAR IRR from 4 April 1975 to 7 July 1976. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record. After reviewing the facts and circumstances, the Board found that all due process protections were afforded the applicant and that the processing of the Article 15 was done within regulatory guidelines and standards. For that reason, the Board recommended that denying the requested relief was appropriate. 2. The Board members all agreed that the burden of proof lies with the applicant; however, he did not provide sufficient evidence to show service credit was warranted. The Board concluded there was insufficient evidence of an error or injustice which would warrant a 20 Year Letter nor an active duty retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 to amend the decision of the ABCMR set forth in Docket Number AR2020000 on 27 May 2021. 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, United States Code (USC), section 1406 provides the legal authority for establishing the retired pay base for members who first became members before 8 September 1980. Paragraph(b)(2) contains guidance on non-regular service retirement and states in pertinent part, that a person who is entitled to retired pay under section 12731, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted of the highest grade held satisfactorily by the person at any time in the Armed Forces. 2. Title 10, USC, section 12731 provides the legal authority for age and service (non- regular) retirements. A non-regular service member is entitled, upon application, to retired pay if the person: * is at least 60 years of age * has performed at least 20 years of qualifying service * having completed the service requirement during the period beginning on 1 October 1994 and ending on 30 September 1999, shall have performed the last 6 years of qualifying service while a member of the Reserve Component 3. Army Regulation 27-10 (Military Justice) provides policy and procedure pertaining to the administration of military justice -within the Army. a. Paragraph 3-24 (Suspension) states ordinarily, punishment is suspended to grant a probational period during which a Soldier may show that the Soldier deserves a remission of the remaining suspended punishment. An executed punishment of reduction or forfeiture may be suspended only within a period of 4 months after the date imposed. Suspension of punishment may not be for a period longer than 6 months from the suspension date. Further misconduct by the Soldier, within the period of the suspension, may be grounds for vacation of the suspended portion of the punishment. Unless otherwise stated, an action suspending a punishment automatically includes a condition that the Soldier not violate any punitive article of the UCMJ. b. Paragraph 3-25 (Vacation) states that a Commander may vacate any suspended punishment provided the punishment is of the type and amount the Commander could impose and where the Commander has determined that the soldier has committed misconduct during the suspension period. Unless the vacation is prior to the expiration of the stated period of suspension, the suspended punishment is remitted automatically without further action. Misconduct resulting in vacation of a suspended punishment may also be the basis for the imposition of another Article 15. c. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) states: (1) Enlisted Soldiers (SGT and above) may request the transfer of a record of nonjudicial punishment from the performance fiche of their OMPF to the restricted fiche. To support the request, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that transfer of the record is in the best interest of the Army. (2) Requests normally will not be considered until a minimum of 1 year has elapsed and at least one nonacademic evaluation report has been received since imposition of the punishment. The Department of the Army Suitability Evaluation Board reviews the evidence and takes final action. 4. AR 140–10 (Assignments, Attachments, Details, and Transfers) provides policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. It defines Ready Reserve Control Groups and the Selected Reserve. Detailed procedures are given for removing soldiers from an active status. It also gives procedures for interservice transfer and selective retention of unit Soldiers. Chapter 4 (The IRR) states the IRR consists of pretrained Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war, or a national emergency declared by Congress. The IRR control groups are as follows: a. Control Group (Annual Training) is authorized for a Soldier who: * Has not completed his or her statutory military service obligation * Is credited with less than 3 years of active duty * Has a mandatory training requirement and is subject to mandatory assignment to a USAR TPU within reasonable commuting distance b. Control Group (Reinforcement) is authorized for a Soldier under one of the following conditions: * Been credited with 3 or more years of active duty * Completed 2 years of active duty and 1 year in an ARNGUS or USAR TPU * Had Federal recognition withdrawn as a result of a selection board convened * No mandatory training requirement 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. 6. AR 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 (updated periodically by the U.S. Army Human Resources Command) is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System. Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627. Documents authorized for filing in the OMPF are kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also serves to protect the interests of the Soldier and the Army. 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. 7. AR 135-180 (ARNG and Army Reserve – Qualifying Service for Retired Pay Non- Regular Service), states: a. Each Reserve Component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing within 1 year after he/she completes at least 15 but less than 20 years of qualifying service under Title 10, United States Code (USC), section 12731a and 12731b. To be eligible for retired pay at or after age 60 an individual must have completed a minimum of 20 years of qualifying service computed under Title 10, USC, section 12732 or 15 years of qualifying service, and less than 20 years, computed under Title 10, USC, section 12732, if the individual is to be separated because the Soldier has been determined unfit for continued Selected Reserve service. b. Paragraph 2-1, to be eligible for retired pay, an individual need not have a military status at the time of application, but must have: * attained age 6 * a minimum of 20 years of qualifying service computed under Title 10, USC, section 12732 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002414 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1