MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  12 October 2000
	DOCKET NUMBER:  AR2000037356

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Carol J. Suiter		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: That his records be corrected to show that he was reinstated into the Army Guard/Reserve (AGR) Program in the Arizona Army National Guard, with full back pay and allowances, effective 26 September 1998.

APPLICANT STATES: That he was involuntarily released from the AGR Program based on accusations lodged against him that were either untrue or distorted.  Initially, his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 September 1998 showed that he received separation pay in the amount of $19,712.22, but was later corrected.  He provides copies of military documents in support of his claim, including a Noncommissioned Officer Evaluation Report for the period March to November 1997 which shows him to be among the best with the Senior Rater placing him in the number 2 block for performance and potential; a DD Form 214 with a correction (DD Form 215); an order awarding the Good Conduct Medal; a statement concerning shredding of documents; and a letter to a member of congress.

EVIDENCE OF RECORD: The applicant's military records have not been provided to this Board.  Information herein was obtained from alternate sources.

After serving for 4 months and 8 days of prior active service and 7 years,            4 months and 6 days of prior inactive service, the applicant entered the AGR Program on 7 November 1983.  He was serving on his third AGR tour of duty.  He was last promoted to staff sergeant, pay grade E-6, effective 28 November 1995.

On 20 March 1996, he was issued a letter of Notification of Eligibility for Retired Pay at age 60 (24 November 2013).

In response to the commander’s request that the applicant be terminated from the AGR Program for Cause, an independent Investigating Officer was appointed to investigate the circumstances.  He completed his review and concluded that the commander’s request was justified.  On 10 September 1998, the commander recommended the applicant be separated from the AGR Program.

On 23 September 1998, the Adjutant General, Arizona Army National Guard (AZARNG) indicated, in a letter of separation, that he had reviewed all the documentation concerning the applicant’s performance and the investigating officer’s report.  He concluded that the applicant’s full-time performance was, without a doubt, unacceptable for a Noncommissioned Officer with his rank and 

responsibilities.  Further, despite several attempts to counsel and provide corrective training, his performance did not improve.  He approved the applicant’s separation from the AGR Program. 

On 25 September 1998, the applicant requested transfer to the Army Reserve Control Group (Retired), effective 1 October 1998.

On 25 September 1998, he was honorably released from active duty under Army Regulation 635-200, chapter 13, based on unsatisfactory performance.  His separation document indicates he had 14 years, 10 months and 19 days of creditable active Federal service for this period.  This separation indicated he had received $19,712.22 separation pay.

On 1 October 1998, a National Guard Bureau Form 22 (Report of Separation and Record of Service) was issued which indicates he had 22 years, 7 months and  11 days total service for retired pay.

On 11 May 1998 (sic), a DD Form 215 was issued which removed the separation pay amount.

On 1 October 1999, the applicant filed a lawsuit against the AZARNG; an individual; the United States of America; the United States Military; the ABC Company; and, the XYZ Corporation for a Statement of Facts in support of defendants’ motion to dismiss, or in the alternative, for summary judgment.  On 30 November 1999, the suit was dismissed/withdrawn for the purpose of application to this Board.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for separation of enlisted personnel.  Paragraph 13-1 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance.  It provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training their military service because of unsatisfactory performance.  Normally, an Honorable or General Discharge Certificate, as warranted by his military record, is furnished.

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’s release from the AGR Program was accomplished in conformance with pertinent regulations.

2.  The evidence of record in the form of a statement by the ARNGAG shows that the applicant failed to perform satisfactorily while serving on an AGR tour.

3.  The applicant’s contentions have been noted; however, he has not shown he was not extended his rights, he was improperly released from his AGR tour, or that he is entitled to reinstatement to his previous AGR tour status.

4.  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 this requirement.

5.  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

__jm___  ___jd__  ___cs_____ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037356	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001012	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.125	NG – Reinstate into the AGR Program	
2.		
3.		
4.		
5.		
6.