PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  11 June 2002
	DOCKET NUMBER:  AR2001060807

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

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Harry B.Oberg		Member	
	Mr. Roger W. Able		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be reinstated in a Reserve status, that he be restored to his pay grade of E-6, staff sergeant (SSG), and that he be provided a 20 year letter authorizing retired pay at age 60.

3.  The applicant states, in effect, he did not receive his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for his 9 August 1991 discharge from the New Mexico Army National Guard (NMARNG) until 
May 2000.  The NGB Form 22 shows his pay grade as E-5, sergeant (SGT), but it should be pay grade E-6, SSG.  The NGB Form 22 shows that he was discharged for unsatisfactory participation.  He had an occupational conflict as a truck driver and so notified the NMARNG by telephone and letter.  The 
NGB Form 22 was mailed to an incorrect address.  His personnel file did have his correct home of record address.  He had over 18 years Federal active duty and should have been locked in for retirement at 20 years of service.  He had over 22 years of service and never received his 20 year letter for retirement at age 60.

4.  The applicant’s military records show the following record of service in the 
U. S. Army up to the period in question:

Period of Service	Type of Service	Rank and Pay Grade at Discharge	Type of Discharge	Reason	
660630 – 710901	RA	SSG, E-6	Honorable	Dependency	
710902 – 720629	USAR Standby Reserve	SSG, E-6	Honorable	ETS	
720630 – 731130	Break in Svc 				
731201 – 741129	USAR TPU	SSG, E-6	unknown	unknown	
741130 – 830918	RA	SSG, E-6	Honorable	ETS	
830919 – 840805	Break in Svc				
840806 – 860606	USAR AGR	SSG, E-6	Honorable	Directed by Secretary	
860607 – 870208	USAR IRR	SSG, E-6	unknown	unknown	
870209 – 870903	NMARNG TPU	SSG, E-6	Transfer to AGR Program	NA	
870904 – 900831	NMARNG AGR	SSG, E-6	Honorable	Early Release at soldiers request	
900901 – 910809	NMARNG TPU	SGT, E-5	General,
transfer to IRR	Unsatisfactory Participant	
910810 – 951212	USAR IRR	SGT, E-5	Honorable	ETS	
Table Legend:  RA = Regular Army
   USAR = U. S. Army Reserve
   IRR = Individual Ready Reserve
   TPU = Troop Program Unit
   AGR = Active Guard Reserve
   ETS = Expiration of Term of Service
   Svc = Service

5.  On 4 September 1987, the applicant began an active duty Active Guard Reserve (AGR) tour with the NMARNG as a SSG, pay grade E-6, recruiter for the NMARNG State Area Command (STARC) Headquarters.  On 1 March 1990, he was transferred to Detachment 1, Battery B, 3rd Battalion, 200 Air Defense Artillery (3/200 ADA), in Grants, New Mexico.  On 31 August 1990, the applicant was honorably released early from his AGR tour at his request, and was assigned to Detachment 1, Battery B, as a regular unit ARNG member.  According to his DD Form 214 given on 31 August 1990, the date of release from his AGR tour, he had 18 years, 9 months, and 20 days “active service,” and 
2 years, 5 months, and 22 days “inactive service” (Reserve service).  According to his NGB Form 23, retirement point statement, as of 9 August 1990, he had 
19 years, 9 months, and 21 days qualifying him for retired pay at age 60.  Not all of his Reserve service was qualifying for retired pay at age 60.

6.  On his 31 August 1990 release from active duty, DD Form 214, the applicant’s home of record address is shown as a post office box in San Juan Pueblo, New Mexico.  The applicant did not show up for unit drills on 8-9 September 1990 and 20-21 September 1990.  On 21 October 1990, his unit commander sent a certified, return receipt, unexcused absence notification letter to the applicant at his San Juan Pueblo address informing him of his eight unexcused absences.  The letter return receipt was signed by the applicant and a second party, whose initials are “KH”.  The return receipt was cancelled in Loveland, Colorado.  In accordance with the procedures specified in Army Regulation 135-91 on unsatisfactory participation, the letter notified the applicant that if he accumulated nine unexcused absences in a 12 month period, he would be subject to separation for unsatisfactory participation.  The letter notified the applicant of the next unit drill assemblies on 3-4 November 1990.

7.  On 1 November 1990, the applicant wrote a letter to the NMARNG Inspector General requesting help in obtaining retirement.  The applicant listed his address as a post office box in Loveland, Colorado.

8.  The applicant did not show up for unit drills on 3-4 November 1990.  On 
13 November 1990, the unit commander sent to the applicant, at his San Juan Pueblo address, a certified, return receipt, unexcused absence notification letter and a letter informing the applicant of his intent to initiate separation action for unsatisfactory participation.
9.  On 26 November 1990, the brigadier general Assistant Adjutant General of the NMARNG, responded to the applicant’s 1 November 1990 letter stating, “During your outbriefing by (the) Support Personnel Management Officer, you were advised that you did not have 20 qualifying years of federal service needed for an immediate annuity.  Further you were advised that you would need to stay until 12 November 1991 to have that necessary service.  Every effort was made to encourage you to remain with the New Mexico Army National Guard until 
12 November 1991, you chose not to. You were not retired from the New Mexico Army National Guard, you were simply removed from Active Guard Reserve (AGR) and transferred to a traditional guard status requiring you to participate on weekends and two weeks of annual training.  Since your DD Form 214 was not for retirement, it is correct as published.  All actions concerning your separation from AGR were initiated by you.  This headquarters responded to your request for separation.  Your separation was voluntary.  We have responded to Congressional inquiries and IG assistance but we cannot give you something that’s beyond our control.  We consider this matter closed.”

10.  The applicant did not show up for unit drills on 8-9 December 1990.  On 
9 December 1990, the unit commander sent to the applicant, at his San Juan Pueblo address, a certified, return receipt, unexcused absence notification letter notifying the applicant that he then had 16 unexcused absences.  On 11 January 1991, the unit administrative noncommissioned officer placed a memorandum of record in the file stating that he had not received back the return receipt cards from these two unexcused absence notification letters.  The applicant did not show up for unit drills on 11-12 January 1991.  On 14 January 1991, the unit commander sent to the applicant, at his San Juan Pueblo address, a certified, return receipt, unexcused absence notification letter notifying the applicant that he then had 20 unexcused absences.

11.  On 17 January 1991, the 3/200 ADA battalion commander sent to the applicant at his Loveland, Colorado, address, a AGONM Form 20-12-11B.2 (Record of Special Proceeding of Non-Judicial Punishment – Absence from Unit Training Assembly, Drill, or Annual Training), notifying the applicant of the commander’s intent to impose an Article 15, Uniform Code of Military Justice (UCMJ), punishment of reduction in grade as a result of his 16 unexcused absences from unit drill from September through December 1990.  The applicant was advised of his rights to request a hearing, request representation, and to present matters of extenuation and mitigation.  The applicant was given until 
9 February 1991 to respond.  The mail return receipt shows that this notice was signed for by the applicant’s agent, initials “KH”, on 19 January 1991.

12.  On 4 February 1991, the battalion commander received back from the applicant the unsigned AGONM Form 20-12-11B.2 with no rights options 

selected.  Also received from the applicant was a DD Form 368 (Request for Discharge or Clearance from a Reserve Unit) showing that he had requested on 1 September 1990, enlistment in the USAR Control Group (Reinforcement) (IRR) and that his unit commander had approved the request on 1 September 1990.  No other documentation or memorandums were attached.

13.  The battalion commander investigated the validity of the DD Form 368 and found the following: 1) the form was the incorrect form to use for requesting transfer to the IRR; 2) the applicant was not in the unit area on or about 
1 September 1990 to sign the form; 3) the battery commander was not available to sign the form on 1 September 1990; and 4) the battery commander’s signature on the form was forged.  The battalion commander determined that the DD Form 368 was constructed to cover up the unexcused absences (AWOL’s) and that the applicant never requested transfer to the IRR or interstate transfer to Colorado.  Based on these findings, on 9 February 1991, the battalion commander imposed the Article 15, UCMJ, punishment and reduced the applicant to SGT, pay grade E-5.  He also published a 9 February 1991 letter notifying the applicant that he was, “still a member of Btry B, 3rd Bn (CHAP), 200th ADA, Gallup, N. M., and that should your unit be mobilized, you must report for duty.  Your continued AWOL’s (unexcused absences) from the unit may be grounds for additional UCMJ action.” On 9 February 1991, the battalion commander sent to the applicant at his Loveland, Colorado, address, notification of all of the above by certified, return receipt, mail.  The correspondence advised the applicant of his right to appeal his Article 15 punishment within 15 days.

14.  On 6 March 1991, the battalion commander forwarded the above Article 15 packet to the 111th Brigade brigadier general commander for approval.  The Article 15 was reviewed by the NMARNG Staff Judge Advocate (SJA) who found it legally sufficient and in accordance with law and regulation.  The SJA recommended approval of the Article 15 punishment.  On 16 March 1991, the brigade commander approved the Article 15 punishment, reduction to SGT, pay grade E-5.  He was so reduced on 26 May 1991.

15.  The applicant did not show up for unit drill on 9-10 February 1991.  On 
10 February 1991, the unit commander sent to the applicant, at his San Juan Pueblo address, a certified, return receipt, unexcused absence notification letter. The post office forwarded the letter to the applicant’s Loveland, Colorado, address, but then returned it to the unit as unclaimed mail.  The applicant did not show up for unit drill on 9-10 March 1991.  On 10 March 1991, the unit commander sent to the applicant, at his San Juan Pueblo address, a certified, return receipt, unexcused absence notification letter.  The post office returned the mail marked, “Forwarding Order Expired.”

16.  On 18 June 1991, after missing 44 unit drills, the unit commander notified the applicant by letter of his intent to initiate action to separate the applicant for unsatisfactory participation.  The letter informed the applicant of his rights and of the possibility of separation under less that honorable conditions.  The letter stated that final action would be suspended for 30 days to give the applicant opportunity to exercise his rights.

17.  On or about 30 July 1991, the battalion commander requested discharge of the applicant under honorable conditions (general discharge) under authority of paragraph 8-27g, National Guard Regulation 600-200, for unsatisfactory participation.  The NMARNG separation authority approved the request on 
30 July 1991, and directed that the applicant be discharged from the NMARNG effective 9 August 1991, with a general discharge, and transferred to the IRR since he still had a Reserve contractual obligation until 3 September 1995.  The applicant was so discharged and a NGB Form 22 so stating was issued.  The applicant’s copy of the NGB Form 22 was sent to the applicant in care of his civilian employer, J. B. Hung Transportation, in Lowell, Arkansas, since his home of record address was no longer valid and he had not responded from his Loveland, Colorado, address.

18.  On 12 December 1995, the U. S. Army Reserve Personnel Center published orders D-12-509274 honorably discharging the applicant from the IRR, effective 
12 December 1995, by reason of ETS.  There was no record of any Reserve duty performed or retirement points earned, other than 15 points a year for membership, while he was in the IRR during this period.  The membership points earned were not sufficient to satisfy the requirement to earn 50 retirement points per year in order for the year to be counted as qualifying for retired pay at 
age 60.

19.  Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in pertinent part, requires Reserve soldiers to attend scheduled unit training assemblies (drills), arrange with the commander for excused absences when they cannot attend for cogent reasons, and to notify the commander in writing of any change of address.  If a soldier moves out of the area of the Reserve unit and is not able to attend drill, it is the soldier’s responsibility to obtain from the unit commander a 90 day leave of absence letter authorizing the soldier to find assignment with a unit in the soldier’s new location.  The unit commander will notify the soldier of unexcused absences by certified letter, return receipt requested.  The regulation specifically states that, “Absence of proof of delivery does not change the fact that the soldier was notified of the proper procedures to be taken on change of residence.”  The regulation also authorizes the separation of soldiers who attain 9 unexcused absences within a 12 month period, reduction in grade, and the 

issue of a discharge under other than honorable conditions.  Paragraph 6-2.1.a(1)(a) authorizes the ARNG to discharge unsatisfactory participants, transfer them to the IRR, and reduce them in grade under National Guard Regulation 600-200, paragraph 6-44a(1)(f).

20.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-44a(1)(f), authorizes the reduction in grade of ARNG soldiers who have been declared unsatisfactory participants in accordance with AR 135-91.  Paragraph 8-27g authorizes the discharge of ARNG soldiers who have been declared unsatisfactory participants.

21.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), Appendix B, Retirement Point Credits – Minimum Required for a Portion of a Year of Qualifying Service for Retirement, shows the number of retirement points that must be earned in a partial year prior to discharge for the period to qualify for retired pay age 60.  The applicant needs a least an additional 2 months and 10 days to increase his 19 years, 9 months, 21 days to 20 years qualifying for retired pay at age 60.  The 2 months and 
10 days is a period of 70 days which requires the applicant to have earned 
10 retirement points for the period to qualify for retired pay at age 60.  This also requires that this last period end with a discharge from Reserve of the Army.  The applicant currently only has 3 retirement points recorded for this period.

CONCLUSIONS:

1.  The applicant was properly reduced to SGT, pay grade E-5, by Article 15, UCMJ, action in accordance with regulation and law.  This rank and grade on his NGB Form 22 for the period ending 9 August 1991, is correct and just.

2.  The evidence of record shows that the applicant received proper notification of unexcused absences, Article 15 reduction in grade, and separation action.  The evidence also shows that he did not keep his unit properly informed of his address, take required action according to regulation to relocate or obtain approved excuse of his absences.  Investigation of a DD Form 368 submitted by the applicant as contention that he had requested transfer to the IRR revealed that the document was fraudulent.

3.  The applicant was properly discharged from the NMARNG on 9 August 1991 for unsatisfactory participation in accordance with regulation and law.  The authority and reason for discharge from the NMARNG and the character of service, unsatisfactory participant and under honorable conditions, shown in his NGB Form 22 for the period ending 9 August 1991, are correct and just.

4.  The applicant was counseled and informed in writing that he did not qualify for retirement, either from active Federal service or upon reaching age 60.  He was advised on the participation requirements to qualify for retirement but requested early release from his AGR tour and did not participate in unit training to obtain the necessary 20 years qualifying for retired pay at age 60.  There is no provision for “lock-in for retirement after 18 years” that applies in this case.  The 22 years service that the applicant refers to is 22 years longevity for pay purposes for duty pay and does not apply to retirement eligibility.  However, in consideration of his otherwise 19 years, 9 months, and 21 days long and faithful service and as a matter of compassion, his retirement points should be redistributed to provide him with 20 years creditable service for retired pay at age 60.

5.  Discharging him from both the NMARNG and the Reserve of the Army on 
16 August 1991, instead of discharge only from the NMARNG and transferring him to the IRR on 9 August 1991, would make his last partial year subject to the provisions of AR 140-158.  For the period, 7 June 1991 through 16 August 1991, a period of 70 days, to qualify for retired pay at age 60, he would require 
10 retirement points.  The period currently does not qualify with only 3 points.  By redistributing 7 points to this period from the 100 points he has in the prior retirement year, the last partial period of 2 months and 10 days would qualify for retired pay at age 60 and increase the total number qualifying from 19 years, 
9 months, and 21 days, to 20 years.  He would then be fully qualified to receive retired pay at age 60.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected for the individual concerned by:

a.  showing that he was discharged on 16 August 1991, from the NMARNG and the Reserve of the Army, without transfer to the IRR, making his last retirement year period a partial year, 910607-910816;

b.  voiding his 12 December 1995 discharge from the IRR;

c.  redistributing 7 ADT points from the 900607-910606 period to the 910607-910816 period;

d.  showing that the period 910607-910816 has a total of 7 ADT retirement points and 3 membership points for a total of 10 retirement points for 2 months and 10 days creditable service for retired pay at age 60;

e.  showing that he has 20 years creditable service for retired pay at age 60;

f.  issuing him a 20 year letter notifying him that he is eligible for retired pay at age 60; and

g.  providing him counseling on making an appropriate election concerning the Survivor Benefit Program (SBP).

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__fe___  ___rd___  ___ra___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Fred N. Eichorn__
		        CHAIRPERSON

INDEX

CASE ID	AR2001060807	
SUFFIX		
RECON		
DATE BOARDED	20020611	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PART	
REVIEW AUTHORITY		
ISSUES         1.	136 – Retirement/Separation	
2.	106.001 - Restoration	
3.		
4.		
5.		
6.