MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            3 June 1999       
	DOCKET NUMBER:   AR1999015325

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests that he be retired from the Army based on 15 years of active service effective in October 1991, and restoration of all rights, privileges, and property from then to the present.  He requests that blocks 26 and 28 of his DD Form 214 be corrected to show that his performance was not unsatisfactory.  

APPLICANT STATES:  He states that there was no grounds to release him from active duty.  He was involuntarily separated from active duty because of he was not qualified in his MOS (military occupational specialty).  His orders to active duty showed he was qualified in his MOS; his [MOS on the] TDA (table of distribution and allowances) was changed without his knowledge, he was never notified of the change, and members of his chain of command were unaware of the problem.   

The applicant states that in the summer of 1996 he became aware that he was wrongfully discharged in 1991 from the AGR (Active Guard/Reserve) program, after having 16 years of active service, and nearly three years left on his active duty tour.

He was informed in August 1991 that he was to be involuntarily separated on     22 October 1991 from the AGR program because of not being qualified in his MOS.  Neither he nor the commandant of the academy (where he was assigned) had prior knowledge of this action.  He was then informed that the MOS of his duty position had been changed from that of a 16F (duster crewman) to 16P (chaparral crewman), that the change had occurred in May of 1990 and that in the subsequent 15 months he had not become qualified in the 16P MOS, and had to be separated.  He states he was unaware of the change, and was told that he could appeal the action.  He stated that he was told that the unit manning roster (UMR) had reflected the change for over a year and that his signature was on the UMR.  He stated that it was common knowledge that the UMR was an unreliable document, that he never got to see it anyway because he worked in operations and the roster was sent to the administration section; and also, that his signature was easy to forge, and his position was considered MOS immaterial.  

He began the appellate process, however, he learned that on 1 October 1991 the rule governing separation pay for involuntary separations was going to change, and rather than take a chance on losing separation pay, he decided not to appeal and to accept the involuntary separation.

His orders placing him on an AGR tour ran through 7 May 1994, which would have given him over 18 years of service, a “lock-in” for retirement.  Those orders also showed that he was ordered to active duty in MOS 16F, for which he was qualified.  The orders were never changed.

He is now in the Reserve, and feels that he did a good job while in an AGR status, as evidenced by his numerous letters of commendation, his completion of training, and his NCO evaluation reports.  He also stated that he was in fact qualified in MOS 16P, having completed a course in that MOS in May 1987, and the enhancement program for that MOS in February 1988.  He never received orders awarding him that MOS because he was never assigned to a position requiring that MOS, and once the separation process began, he believed it was too late to acquire the MOS.  He states that he has since been awarded the 16P MOS by his Reserve command. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant submits fifteen attachments to his request (Tabs A through O).  Significant are:

•	Tab A.  A 22 August 1991 memorandum from the New Mexico Army National Guard informing the applicant that he would be involuntarily separated from the AGR program on 22 October 1991.  That memorandum indicated that the applicant had a suspense date in May of 1990 to be MOS qualified but had failed to do so.
•	Tab B.  The applicant’s DD Form 214 which shows that he was released from active duty on 22 October 1991 under the provisions of Army Regulation   635-200, chapter 13, for failure to become MOS qualified.  His separation code on that form is “LHJ”.  He had over 16 years of active service.  His DD Form 214 and orders dated 16 September 1991 show that he was authorized separation pay.
•	Tab C.  Orders dated 20 October 1988 show that he was ordered to full time National Guard duty in an AGR status for five years through 7 May 1994 as an instructor/NBC NCO, MOS 16F4H.
•	Tab L.  A certificate showing that the applicant had successfully completed a 16P (chaparral missile crewman course), and a certificate dated                   26 February 1988 showing that he completed the chaparral NCO evaluation course.  
•	The remaining tabs include documents showing successful completion of Army physical fitness tests; his high aptitude test scores; his numerous certificates of appreciation, achievement, commendation; his completion of various service school courses; the awards that he received; his NCO evaluation reports; his college transcripts, and the certificates awarding him a bachelor of business administration and a bachelor of science degree; and  certificates of training in the civilian environment.

In a 12 January 1997 letter to a member of congress (MC), the Adjutant General of the New Mexico Army National Guard informed that person that AGR soldiers who were not MOS qualified were separated without board action, that the separation was to be effected regardless of the expiration date of duty orders, provided soldiers were given at least 30 days notice.  The Adjutant General noted that the applicant had stated that he had the opportunity to appeal, but chose not to do so.  He informed the MC that the temporary early retirement authority (TERA) mentioned by the applicant was a voluntary benefit to be used as a tool to meet congressionally mandated end strength levels and assist in restructuring the force, that the applicant's separation was proper, and that a discussion of his being deprived of a benefit available to members of active duty in FY93 and beyond was not appropriate.  He went on to say that the mere existence of a program in a law did not mean that it would have been extended to the applicant or that his application would have been approved if he had remained on active duty.  He stated that the applicant’s supervisor encouraged him not to leave the AGR program but to remain and complete 20 years of active duty, but he (the applicant’s supervisor) stated that the applicant’s attention seemed focused on separation pay and he could not be dissuaded from separation.

On 27 February 1997 the applicant in a letter to the same MC, took exception to the aforementioned letter from the Adjutant General of the New Mexico Army National Guard.  He stated that that official did not address that MOS qualification issue, in that he was ordered to active duty in MOS 16F; and regardless, he was qualified in MOS 16P; that he was never notified of a change in MOS qualification requirements, and that it did not address the fact that his position on the TDA was “MOS immaterial”, because no MOS identified the job requirements.  The state failed to issue orders awarding him the 16P MOS, even though they had copies of his completed training certificates for that MOS.  He goes on to say that the Adjutant General emphasized that he was never discouraged from filing an appeal, but he feared losing the appeal and the separation pay.  He stated that he was not told of the appeal process until         27 days before the new regulation went into effect.  

The applicant went on to say that he was falsely discharged for not being MOS qualified, when in fact he was, and that had he been allowed to remain on active duty he would have had over 18 years of service, “locking” him in for a 20 year retirement.  He stated that he did not choose to leave, and the argument that he was focused on separation pay is ridiculous in view of the benefits that he could reap with a 20 year retirement.  He did say that his superior tried hard to get him to file an appeal.  He stated that he has shown that his discharge for 

unsatisfactory performance because of his failure to become MOS qualified, is wrong.  He states that he is fully entitled to a 20 year retirement, with full active duty back pay starting 23 October 1991, and full compensation for loss of all benefits, as well as loss of promotion opportunity, and compensation for all mental anguish suffered by himself and his family.  

On 12 May 1997 the Adjutant General for the New Mexico Army National Guard again wrote the same MC in response to that person’s follow-up letter.  He stated that the applicant had never been awarded MOS 16P, and was correctly separated because he was not MOS qualified.  The applicant never challenged procedurally the separation action, nor raise in any formal way the lack of an award of MOS 16P that had it been done, would also in all probability have kept him in an AGR status.  

On 19 February 1999 the applicant appeared before the Army Discharge Review Board.  That board found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met. The board determined that the applicant had ample opportunity to raise issues related to his discharge, prior to his discharge; however, he elected not to do so in order to receive separation pay.  In an unanimous opinion, the board determined that the reason for his discharge was both proper and equitable.

National Guard Regulation 600-5, then in effect, prescribes policies and procedures for the management of Army National Guard soldiers in the AGR program who serve on full-time National Guard Duty (FTNGD) under provisions of section 502(f), title 32, United States Code.  Chapter 6 concerns separation from the AGR program, and states in pertinent part, that separation relates to release from full-time National Guard duty and that the provisions of Army Regulation 135-18, paragraphs 5-1b(1) and 5-1c will be complied with. 

Army Regulation 135-18 establishes policies and prescribes procedures for obtaining, administering, and separating Army National Guard personnel serving as members of the AGR program.  Paragraph 5-1b(1) states that all separations, voluntary and involuntary, from the program will be governed by directives published by CNGB by personnel serving under 32 USC.  Paragraph 5-1c states that AGR personnel separated for cause will be reported to the appropriate State Adjutant General, CNGB, or CAR for possible discharge proceedings under applicable regulations.

The aforementioned National Guard Regulation 600-5, paragraph 6-4, states in effect, that AGR soldiers will be separated without board action for failure to meet MOS or AOC qualification standards, regardless of the expiration dates of their current periods of duty.  Retention is not authorized.  Separation for cause procedures need not be used.  Soldiers will be given at least 30 days notice of separation.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was notified that he was being involuntarily separated from the AGR program in accordance with the provisions of the applicable regulations.  Notwithstanding the applicant’s contentions, he had ample opportunity to appeal the separation action, had he chosen to do so.  He himself admits that he opted not to appeal the separation action, for fear of having his appeal denied, and consequently losing separation pay because of an imminent rule change.  The applicant also stated that he was encouraged by his supervisor to file an appeal.

2.  The applicant’s decision to not appeal his involuntary separation is curious, in view of the fact that he may well have been able to show that he was MOS qualified, and successfully contest the separation action.  Nevertheless, the decision was his to make, and his statement that in the summer of 1996, he became aware that he was wrongfully discharged in 1991 does not ring true.    
This Board believes that the applicant wanted the separation pay, and acted accordingly.

3.  The applicant’s DD Form 214 is correct.  His discharge for failure to become MOS qualified is appropriate. 

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rvo__  __kan___  ___tbr__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015325	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990603	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2. 125.00		
3.  128.00		
4.  136.00		
5.		
6.