IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007084 APPLICANT REQUESTS: Correction of his military record to show he is still enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP), awaiting the adjudication of his additional background checks. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), with self-authored statement * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the U.S.) page 1 * DD Form 1966 (Record of Military Processing – Armed Forces of the United States) page 1 * Letter from U.S. Citizenship and Immigration Services (USCIS) * Email from U.S. Army Recruiting Command (USAREC) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of a group application by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170012702 on 3 October 2017. 2. The applicant provides a self-authored statement that is available in its entirety for the Board's consideration. He states, in part: a. He is a foreign student who came to the U.S. in September 2008. After obtaining his bachelor's degree he decided to join the Army. At the time, he was under Optional Practical Training (OPT) status that allows foreign students to obtain a work permit and find work in their field of study after graduation. b. He was recruited into and enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) under the Military Accessions Vital to the National Interest (MAVNI) program for active duty in May 2016. His recruiters told him that most future Soldiers ship to Basic Combat Training (BCT) within 6 months of enlistment so, he assumed he would ship no later than November 2016. As a result, he did not enroll to attend school in the fall semester. c. Unfortunately, things did not go as planned for many MAVNIs, including him. The MAVNI program experienced a plethora of administrative challenges beginning in the fall of 2016, due to the Department of Defense (DoD) suddenly changing requirements for background investigation. Recruiters advised MAVNIs that the delay would end soon, and they would all ship to BCT soon. As time passed, he and other MAVNIs found themselves stuck in limbo. He was neither a student nor a U.S. Soldier. This made his life more difficult because he could not work and could not obtain a valid State identification card or driver's license. Moreover, they were advised that leaving the U.S. would cause them to be dropped from the MAVNI program. d. In October 2017, the ABCMR ordered that the records of 1,455 members of the DEP be corrected so their contracts would begin and end one year later than shown on their enlistment records. The ABCMR stated in its decision that "Applicants through no fault of their own, have been subjected to a procedural delay that may result in discharge from the USAR due to exceeding allowable time in the DEP. The Board may remedy this injustice by amending the current effective date of the applicant's individual contracts to the same date of the following year." e. As he continued to wait without a valid status, he remained hopeful that his case along with the remaining MAVNIs in DEP would be reviewed and cleared. He obtained Deferred Action status from the Department of Homeland Security (DHS) that allowed him to finally obtain a state identification card and work permit. f. In February 2022, he contacted USAREC to inquire about his clearance issue and was informed he was dropped back in May 2018 due to reaching the maximum of 730 days in the DEP. He was dropped without notice, while 1,455 others were extended by the ABCMR. g. America is the flag bearer of equality and fair treatment. Being dropped without notice or a chance to decide what he wanted to do was unfair and harsh. To date, he has never received any paperwork from anyone regarding this action. He humbly requests a record correction and a chance to fulfill his contract. 3. The applicant, like the majority of MAVNI recruits, has no Army Military Human Resource Record (AMHRR) available in the integrated Personnel Electronic Record Management Systems (iPERMS) database. His case is being considered using documents provided by the Director for Accessions & Retention Policy, Office of the Assistant Secretary of the Army (Manpower & Reserve Affairs) (ASA (M&RA)) and the applicant. 4. A DA Form 330, dated 19 May 2016, shows the applicant underwent a Foreign Language Proficiency test for French on 18 May 2016 to determine whether he was a viable candidate for the MAVNI program. His scores show he was determined to be proficient in both speaking and listening. 5. A DD Form 4 shows the applicant enlisted in the USAR DEP with the intent of serving in the Regular Army for a period of 5 years on 20 May 2016. His DD Form 1966 shows his projected active-duty date was 22 May 2017. Under MAVNI, military services were authorized to recruit certain legal aliens whose skills were considered to be vital to the national interest. Those holding critical skills – physicians, nurses, and certain experts in selected languages with associated cultural backgrounds – were eligible. The criteria for enlistment in the MAVNI program was as follows: a. Eligibility for Health Care Professionals: * Applicants must fill medical specialties where the service has a shortfall * Applicants must meet all qualification criteria required for their medical specialty, and the criteria for foreign-trained DOD medical personnel recruited under other authorities * Applicants must demonstrate proficiency in English * Applicants must commit to at least 3 years of active duty, or six years in the Selected Reserve b. Eligibility for Enlisted Individuals with Special Language and Culture Backgrounds * Applicants must possess specific language and culture capabilities in a language critical to DOD * Applicants must demonstrate a language proficiency * Applicants must meet all existing enlistment eligibility criteria * Applicants must enlist for at least 4 years of active duty c. Upon enlistment, each future Soldier completes, with an Army Recruiter, a packet for entry into the DEP that consists of the following: * Oral Proficiency Interview * Medical Forms (DD Form 2807-1, DD Form 2807-2, DD Form 2808) * DEP Enlistment Document (DD Form 4) * DD Form 369 (Police Check) 6. In conjunction with enlistment under MAVNI, the applicants were subject to a thorough background investigation prior to entering active duty. The applicants were held in the USAR DEP pending completion of background investigations. Service in the DEP is limited by statute to 730 days. 7. Under Secretary of Defense Memorandum, dated 30 September 2016, subject: MAVNI Pilot Program Extension, was developed in coordination with the Under Secretary of Defense for Intelligence and extended the MAVNI pilot Program through 30 September 2017. This memorandum also stipulated that each Military Department would prohibit Category 2 language/associated culture applicants from shipping to basic training or serving for any period of time on active duty until the Military Service certifies in writing to the Under Secretary of Defense for Personnel and Readiness (USD (P&R)) and the Under Secretary of Defense for Intelligence (USD(I)) their ability to meet administrative, security, and suitability protocols prior to accessing any new applicants into the DEP. The guidance within this memorandum applied to all MAVNls currently in the DEP, all future applicants, and all Reserve accessions who entered Service or shipped to basic training on or after the date of this memorandum. Those persons in the DEP who were recruited under the eligible language list in effect since 2014 could continue in the accession process, but they had to be satisfactorily screened under the revised screening protocols found in this memorandum. 8. In 2017, the Army realized that due to significant backlogs, numerous MAVNI applicants were at risk of reaching the statutory limit of 730 days in the DEP prior to completion of the required background investigations. In order to avoid the potential loss of numerous enlistees, the ASA (M&RA) directed USAREC to have recruiters contact each MAVNI enlistee to afford them an opportunity to opt into a mass petition to the ABCMR to have their time in the DEP extended beyond the statutory 730-day limit in order to allow additional time for their background investigations to be completed. 9. On 17 August 2017, the ASA (M&RA) petitioned the ABCMR to correct enlistment dates for all interested MAVNI enlistees by shifting them to 1 year later than the dates on their contracts. The ABCMR granted full relief for 1,455 applicants in Docket Number AR20170012702 on 3 October 2017. 10. Order number 149-01, issued by the U.S. Army Recruiting Battalion, Houston, TX, on 29 May 2018, shows the applicant was retroactively separated from the Regular Army Future Soldier Program effective 21 May 2018. The type of discharge is shown as "Other Reason." The order reflects the Texas mailing address indicated on the applicant's enlistment contract. 11. On 11 June 2018, at the request of the Army G1, the ABCMR administratively added the name of one individual to ABCMR decision who had been inadvertently omitted from the original petition. 12. A DoD Consolidated Adjudications Facility (CAF), Fort George G. Meade, MD, memorandum, subject: Military Service Suitability Recommendation (MSSR) and National Security Determination (NSD) Reference [the applicant], dated 26 June 2018, shows Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G1 was informed the DoD CAF had determined that derogatory information that could not be mitigated existed for the applicant and/or derogatory information not previously known to the Military Department accessions Component was present. Therefore, the DoD CAF had made a non-favorable MSSR for the purposes of informing the Military Service Suitability Determination (MSSD) for accession into the U.S. Armed Forces. The G1 was tasked, in part, to acknowledge receipt of this memorandum within 30 calendar days. Subsequently, provide a response indicating whether the final MSSD was favorable or unfavorable no later than 30 days after acknowledging receipt. Failure to respond in the allotted time for either the acknowledgement of receipt or the subsequent response would result in a No Determination Made entry in the Joint Personnel Adjudication System, or its successor system. Receipt was acknowledged on 5 July 2018, but there is no record of a response being provided at any time. 13. On 27 June 2018, at the request of the Army G1, the ABCMR administratively added the names of six individuals to ABCMR decision who had been inadvertently omitted from the original petition. 14. A thorough search of all AMHRR repository databases failed to reveal any evidence showing the applicant was notified about the Army's initiative to extend the length of time that MAVNI enlistees could spend in the DEP or afforded an opportunity to choose whether he wanted to opt-in for inclusion in the group petition to the ABCMR. 15. The applicant provides: a. A letter he received from USCIS, dated 23 September 2020, advising him that he was granted deferred action for a period of two years that would expire on 13 September 2022. b. Email correspondence showing the applicant contacted USAREC on 16 February 2022 to inquire about his MAVNI status and was informed he was discharged in May of 2018 because he reached 730 days in the DEP. He was advised the Recruiting Battalion/Station he was assigned to should have notified him and sent him a copy of his discharge order. 16. The applicant was subjected to a procedural delay that resulted in his discharge from the USAR due to exceeding the allowable time in the DEP. This Board may remedy this injustice by amending the current effective date of the applicants' enlistment contract to a date that will allow him to be in the DEP for one year or completion of a thorough Personnel Security Investigation, whichever occurs first. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. The Board determined that in order to avoid the potential loss of numerous enlistees, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA(M&RA)) directed the United States Army Recruiting Command (USAREC) to have recruiters contact each MAVNI enlistee to afford them an opportunity to opt into a mass petition to the ABCMR to have their time in the DEP extended beyond the statutory 730 day limit in order to allow additional time for their background investigations to be completed. Upon review of the applicant’s petition and available military records Board determined there is no evidence showing he was properly notified and offered an opportunity to opt into the ABCMR's mass petition that ultimately granted full relief to 1,455 applicants. 2. The Board determined in the time since this initial action, names have been added to the list retroactively when there is no evidence showing the Military Accessions Vital to the National Interest (MAVNI) program enlistee was properly notified and afforded an opportunity to opt in for inclusion on the ABCMR's mass petition. Based on the error and no fault of the applicant, the Board granted relief by amending the applicant’s enlistment contract date that allows in the remain in the DEP for one year or completion of a thorough Personnel Security Investigation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned by correction of his military record to show he is still enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP), awaiting the adjudication of his additional background checks. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, U.S. Code (USC), Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, Section 513. Enlistments: Delayed Entry Program: a. A person with no prior military service who is qualified under section 505 of this title and applicable regulations for enlistment in a regular component of an armed force may (except as provided in subsection (c)) be enlisted as a Reserve for service in the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve for a term of not less than six years nor more than eight years. b. (1) Unless sooner ordered to active duty under chapter 39 of this title or another provision of law, a person enlisted under subsection (a) shall, within 365 days after such enlistment, be discharged from the reserve component in which enlisted and immediately be enlisted in the regular component of an armed force. The Secretary concerned may extend the 365-day period for any person for up to an additional 365 days if the Secretary determines that it is in the best interests of the armed force of which that person is a member to do so; and (2) During the period beginning on the date on which the person enlists under subsection (a) and ending on the date on which the person is enlisted in a regular component under paragraph (1), the person shall be in the Ready Reserve of the armed force concerned. c. A person who is under orders to report for induction into an armed force under the Military Selective Service Act (50 USC. App. 451 et seq.), except as provided in clause (ii) or (iii) of section 6(c)(2)(A) of that Act, may not be enlisted under subsection (a). d. This section shall be carried out under regulations to be prescribed by the Secretary of Defense or the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy. 3. Under Secretary of Defense Memorandum, dated 30 September 2016, subject: MAVNI Pilot Program Extension, was developed in coordination with the Under Secretary of Defense for Intelligence and extends the MAVNI pilot Program through 30 September 2017. The Military Department will prohibit Category 2 language/associated culture applicants from shipping to basic training or serving for any period of time on active duty until the Military Service certifies in writing to the USD (P& R) and the USD(I) their ability to meet administrative, security, and suitability protocols mandated herein prior to accessing any new applicants into the DEP. a. The guidance within this memorandum applies to all MAVNls currently in the DEP, all future applicants, and all Reserve accessions who enter Service or ship to basic training on or after the date of this memorandum. Those persons in the DEP who were recruited under the eligible language list in effect since 2014 may continue in the accession process, but they must be satisfactorily screened under the revised screening protocols found in this memorandum. b. All personnel accessed through the MAVNI program since its inception must be continuously monitored and accounted for throughout the duration of their affiliation with the Department of Defense (e.g. active duty, Reserve, government civilian, or contractor). c. No Service member accessed under language/associated culture MAVNl eligibility is eligible for a security clearance until they have satisfied time in service requirements and have received an updated and favorable determination by the Consolidated Adjudications Facility. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007084 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1