PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 February 2003
	DOCKET NUMBER:   AR2002070990

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Robert J. Osborn, II		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 that he be reinstated on active duty and credited with the additional six years of service denied him due to his illegal removal from active duty by the Texas Army National Guard (TXARNG).  He requests back pay and allowances, plus embarrassment pay, plus retirement pay.  He requests that he be declared qualified as an aggrieved party under the Military Whistleblower Protection Act.  He requests that his promotion eligibility dates be recomputed and that he be reconsidered for promotion.  He requests that his Mandatory Removal Date (MRD) be adjusted to correspond with the time he lost as a result of his illegal removal from the TXARNG.  He requests that he be awarded interest on all due and unpaid amounts.  He requests that he be provided a more accurate Senior Enlisted Evaluation Report (SEER) for the period January to October 1979 and that it incorporate his rater's (Captain O___'s) evaluation and eliminate any false and adverse ratings and comments by Captain M___ and Lieutenant Colonel W___ if any exist.  If this is not possible, he requests removal of the SEER from his records with an explanation of its removal placed in his file and copies forwarded to him.  

3.  The applicant further requests that any pertinent changes to his Personnel Qualification Record, DA Form 2-1, be made.  He requests that false and adverse information during the pertinent rated periods be removed from his files and forwarded to him.  He requests such writs and execution as may be necessary to recover on his judgment.  He requests that disciplinary or administrative action be taken against former members of the TXARNG who committed acts of reprisal against him in accordance with Army Regulation      15-185, paragraph 2-2.b.  He requests that disciplinary or administrative action be taken against former members of the TXARNG who committed acts of reprisal against him in accordance with Title 18, U. S. Code, sections 241 and 242 and Title 42, U. S. Code, sections 1983 and 1985.  

4.  The applicant states that Army Regulation 140-10, paragraph 3-6.b states that the contrary-to-law removal of a member from an active reserve status is void.  Upon such discovery, that member will be allowed to resume active participation in the Reserve.  Removal orders will be revoked to clarify the record and the member's active status will be confirmed.

5.  The applicant states that he was an active status drilling member of the TXARNG from 1978 to 2 July 1979.  He was placed on full time active duty (FTTD) effective 2 July 1979 for two years and illegally terminated effective       31 October 1979.  He was then twice illegally and involuntarily transferred to an active status drilling assignment to units more than 50 miles from his home even though the first sergeant position in Company C remained vacant or unfilled by a qualified soldier.  After his termination, the first sergeant position reverted to an active drilling troop program unit position.  On 17 May 1980, he requested assignment to the Inactive National Guard to avoid undergoing further harassment and financial and personal hardship imposed by the TXARNG.  
6.  The applicant states the Board granted relief to Captain O___ in a related case (docket number AC98-12337/AR1998012670).  Captain O___ was his company commander.  The Board determined Captain O___'s improper discharge was directly related to the actions which led to his (this applicant's) improper and illegal discharge.  Actions taken by the TXARNG are such that they would have constituted the type of acts protected under the "Whistleblower Act."
The Board's decision for Captain O___ establishes a precedent that can be applied to him.  Although a directive was issued by the Secretary of the Army, the TXARNG has continued to refuse to take any positive corrective or remedial action for Captain O___ or himself.

7.  The applicant states that, at the time of his unlawful termination from his full-time duty status with the TXARNG, he was serving in an active duty position in accordance with Title 32, U. S. Code.  The result is that he suffered a break in service and, because of that, he will not be allowed to retire until he has completed 8 years continuous duty without such a break in service.  Otherwise, he would have been eligible to retire in 1984.

8.  The applicant states that in June 1979, while he served as first sergeant of Company C, 1st Battalion (Airborne), 143d Infantry, 30 soldiers from that unit's Detachment 1 alleged wrongdoing and criminal conduct on the part of a senior NCO.  Captain O___ conducted an investigation and determined the allegations were credible.  The brigade-appointed investigating officer concurred with Captain O___ but the brigade commander elected to refer the matter to the Adjutant General of Texas (AGTEX) in lieu of a trial.  The AGTEX appointed the AGTEX inspector general (AGTEX-IG) to investigate.  The AGTEX-IG stated the senior NCO got a "raw deal" and made racist remarks concerning the soldiers who made the allegations.  

9.  The applicant states that he, Captain O___, and a lieutenant complained of the prejudicial nature of the AGTEX-IG's investigation to their battalion and brigade commanders.  When they refused to raise this issue with the AGTEX, he and the lieutenant brought the matter to the State governor's attention.  The applicant was relieved by the brigade commander after he went to the governor's office.  His relief did not follow the procedures outlined by the U. S. Army, the National Guard Bureau (NGB), or the AGTEX and he filed for an injunction to stop the action.  The chain of command took no corrective actions until investigative reporters and outside agencies inquired into the situation.  Subsequently, the allegations were proved true by newspapers, the Department of Defense IG, the Federal Bureau of Investigation, and Treasury agents, but the AGTEX refused to exonerate him, Captain O___, and the lieutenant.

10.  The applicant states that one SEER, with Captain O___ as the rater, covers the period January through October 1979 when the events in his case evolved but he never received a copy of the final version.  A fraudulent SEER may have been prepared and placed in his official file.  

11.  The applicant states that the delay in submitting his application was caused by ongoing appeals to state and federal courts.  On 28 March 1985, the U. S. District Court suit was dismissed because all pre-litigation administrative remedies had not been exhausted.  Upon appeal, the U. S. Court of Appeals for the Fifth Circuit dismissed his and Captain O___'s appeals on 23 July 1986 with the modification that it be without prejudice to the claims for which there may be ultimate reviewability of any future decision by the Board.  Captain O___ subsequently filed his application to the Board in 1998.

12.  The applicant states that, after having served on active duty and in the U. S. Army Reserve, he accepted an assignment as First Sergeant, Company C, 1st Battalion (Airborne), 143d Infantry in the TXARNG in 1978.  In 1979, he reenlisted in the TXARNG for 6 years and he was ordered to FTTD in an active duty National Guard assignment until he was illegally discharged on 31 October 1979.

13.  The applicant states that if the TXARNG had followed proper procedures, he would have been eligible for consideration for promotion before the end of his enlistment and his record would not contain the adverse information created by the conspiracy to discredit him.  Also, as a highly trained and skilled Special Forces medic, he would have been offered the opportunity for warrant officer assignments in Special Forces.  He should be reboarded for various ranks through command sergeant major and warrant officer.  This includes a necessity to adjust his MRD.  

14.  That applicant states that he understands that his illegal discharge occurred before the enactment of the Whistleblower Act.  However, had the illegal release orders been immediately revoked and had he been reinstated to active duty status as required under Federal authority and mandates, then he would not have been compelled to pursue redress through the Board.  Therefore, he requests a finding that he qualifies for protection under the Whistleblower Act and any compensation attributable thereto.

15.  The applicant’s military records from his ARNG service are not available.  Information contained herein was obtained from alternate sources.

16.  The applicant was born on 4 April 1943.

17.  Orders 129-8, State of Texas, Adjutant General's Department dated 5 July 1979 show that the applicant, while the First Sergeant of Company C, 1st Battalion (Airborne), 143d Infantry, TXARNG in Bryan, TX, was ordered to FTTD for 731 days (2 July 1979 - 1 July 1981), with a reporting date of 2 July 1979.  He was to perform duties in career management field 11 under the conversion of Technician Spaces to Full-Time Military (CFTM) Program with Unit of Assignment.  The additional instructions stated, in part, "In this regard, the individual accepts the fact that the initial six (6) months of his tour is considered probationary and that continuance in the CFTM Program is dependent upon his satisfactory job performance."  This was a Title 32, U. S. Code assignment.

18.  The Technician Position Description for the applicant's position, Administrative Supply Technician, stated that the technician worked under the general supervision of the unit commander who designated specific areas of responsibility.  General and technical supervision and guidance was exercised by the Staff Administrative Assistant.  That individual provided instructions on command policies and procedures, checked work for adequacy and compliance with directives and regulations through periodic visits and inspections, and reviewed completed work.  

19.  By Disposition Form, DA Form 2496, dated 6 August 1979, in which reference was made to two conferences between Captain O___, Lieutenant W___, Captain M___, and the applicant, Captain O___ reminded his three technicians that they worked for him.  He was to be informed of any conflict that his policies or directions could have with Battalion, Brigade, or State technician and command policies or directions.  If he chose to remain in conflict with those policies or directions, he alone would suffer the consequences as long as they informed him that he was in conflict.  

20.  A Headquarters, 1st Battalion (Airborne), 143d Infantry letter dated              23 August 1979, subject:  Technician Performance of Duty, and signed by the Command Administrative Assistant, Captain M___, informed the applicant that he was being counseled due to his performance of duty as Administrative Supply Technician for Company C being unsatisfactory.  Captain M___ indicated that the applicant had received an initial counseling session shortly after he assumed his technician duties.  Since then, there had been other informal counseling sessions to clarify areas of concern or to point out shortcomings in his performance of his technician duties.  Up through mid-August 1979, Captain M___ did not keep records of specific items they talked about.  He then went on to list six areas, occurring from 14 through 21 August 1979, that the applicant was deficient in.  

21.  By letter dated 5 October 1979, subject:  Notice of Termination of Employment, the applicant was informed by Captain M___ that Captain M___ was terminating his employment as Administrative Supply Technician (CFTM) for Company C effective 31 October 1979.  The reasons for this action were cited as the applicant's failure to respond to directed instructions and performance counseling for reasons other than inability and for failure to maintain adequate knowledge of various programs and procedures required for implementation of duty performance.  Lieutenant Colonel W___ signed the letter concurring with the action and informing the applicant that his MTOE (modified table of equipment) position as First Sergeant of Company C, 1st Battalion, (Airborne) 143d Infantry was also terminated effective 31 October 1979.

22.  In a 3-page letter dated 5 October 1979, subject:  Notice of Proposed Removal, from Captain M___ to the applicant, the applicant was informed that Captain M___ proposed to request his removal from employment as Administrative Supply Technician not earlier than 31 October 1979.  He cited his reasons for the action in most of the rest of the 3-page letter.  The applicant contends this letter was never sent.

23.  By letter dated 8 October 1979, subject:  Reason for Separation, the applicant was informed by the Adjutant General's Department that his reason for separation from FTTD under the CFTM was involuntary release of a probationary military employee and the authority for his separation was by Order of the AGTEX.  

24.  By letter dated 8 October 1979, Subject:  Notice of Termination of Employment (the applicant), Captain O___ informed AGTEX, through the Commander, 1st Battalion (Airborne), 143d Infantry and the Commander, 36th Airborne Brigade, that he protested the applicant's termination.  He stated the reasons for termination were neither factual nor adequate to effect the termination action; that proper military and/or civil service procedures were not followed; and that he, as the company commander, was never consulted on this action nor was an evaluation of the applicant's performance requested or required of him.  The applicant contends that the brigade commander never forwarded this letter to the AGTEX.

25.  By letter dated 13 October 1979 from Headquarters, 36th Airborne Brigade, subject:  Release from CFTM Position, the applicant was informed by Major B___, the Command Administrative Assistant, that he had the right to respond, in writing, to the allegations made against him for which he had been notified of his pending termination.  This letter referred to the 23 August 1979 letter, subject:  Technician Performance of Duty and the 5 October 1979 letter, subject:  Notice of Termination of Employment.

26.  Orders 198-18, State of Texas, Adjutant General's Department dated         15 October 1979 amended Orders 129-8 to change the applicant's period of active duty to read 122 days (2 July through 31 October 1979).

27.  By letter dated 25 October 1979, subject:  Reason for Separation, the applicant was informed by the Adjutant General's Department that his reason for separation from FTTD was involuntary release for ineffectiveness and the authority for his separation was NGB Pamphlet 614-3(T), paragraph 4-1e(2).

28.  By letter dated 26 October 1979, the applicant responded to the notice of his involuntary release from the CFTM position.  One of his contentions was that the letter dated 5 October 1979 was not in accordance with NGB Pamphlet 614-e(T).

29.  In a letter dated 30 October 1979 to the Director, Military Personnel, the AGTEX responded to the applicant's 26 October 1979 letter.  The AGTEX stated that he was aware that NGB Pamphlet 614-3(T) provided, as a general rule,   that persons in the applicant's position should be allowed to complete at least     4 months of their 2-year tours before being considered for removal.  However, the AGTEX considered that the pamphlet was not applicable in the applicant's case for two reasons.  First, they had not yet adopted that pamphlet by implementing it within the TXARNG and, second, because the applicant entered onto the tour approximately 3 months prior to the issuance of the pamphlet.  The AGTEX stated that, in any case, he considered that the "exceptions" portion of paragraph 4-1a allowed the proposal of removal in the applicant's case.

30.  On an unknown date, the applicant applied for redress of wrongs under section 138, Texas Code of Military Justice.  The battalion commander refused redress.

31.  Orders 41-1, Headquarters, 36th Airborne Brigade, TXARNG dated            30 October 1979 transferred the applicant to Headquarters and Headquarters Company, 36th Airborne Brigade in Houston, TX effective 1 November 1979.  These orders also laterally appointed him from first sergeant to master sergeant.

32.  On 31 October 1979, the applicant was released from FTTD after completing 3 months and 29 days of creditable active service for that period, a total of        14 years, 3 months, and 6 days of active service, and a total of 19 years,            2 months, and 21 days of service for pay.  

33.  A draft change of rater SEER for the period January through October 1979, completed only by Captain O___, the applicant's rater, gave the applicant the highest ratings and all commendable comments.

34.  By letter dated 8 November 1979, the Adjutant General's Department informed the applicant that the letter dated 25 October 1979, subject:  Reason for Separation, was issued in error.  A corrected copy of the explanation of his release from the CFTM program was enclosed (but is not available to the Board).

35.  By letter dated 1 February 1980, the applicant was informed that attendance records at Headquarters and Headquarters Company, 36th Airborne Brigade showed he was absent from scheduled unit training assemblies on 12 and        13 January 1980.  This letter was signed by Major Richard B___.

36.  Orders, 21-1, Command and Control Headquarters, TXARNG dated 3 May 1980 transferred the applicant to Command and Control Headquarters, TXARNG in Austin, TX effective 5 May 1980.  These orders were amended on 5 May 1980 to correct the orders number to read 22-1 and to correct the applicant's first name and middle initial.

37.  On 17 May 1980, the applicant requested transfer to the Inactive National Guard until such a time a vacancy existed in the grade of E-8 within a reasonable commuting distance (50 miles) of his home.  His request was approved.

38.  On 30 September 1981, the applicant was discharged from the Army National Guard of Texas and transferred to the U. S. Army Control Group (Individual Ready Reserve).

39.  NGB Pamphlet 614-3(T), Assignments, Details, and Transfers, Conversion to Full-Time Military (CFTM) for the ARNG Fiscal Year 1980, was dated            20 September 1979 and effective 1 October 1979.  Its purpose was to establish administrative procedures and instructions for continuing the CFTM test program for all units of the ARNG through Fiscal Year 1980.  The CFTM program was defined as a program under which qualified personnel were selectively accepted for and voluntarily ordered to FTTD under the provisions of Title 32, U. S. Code, section 503, to fill ARNG technician positions that had been declared vacant and advertised for military fill (i.e., the forerunner of the Active Guard/Reserve (AGR) program).  The CFTM test program would be administered and controlled by the respective State adjutants general with the NGB exercising overall program management.

40.  Paragraph 4-1 of NGB Pamphlet 614-3(T) provided that personnel participating in the program could be involuntarily released when it was determined their degree of efficiency and manner of performance required such action.  It stated that requests for the release of members on tours of 2 years would not be submitted until the member had completed at least 4 months on such assignment.  Any exceptions to the 4-month period must have been requested from the State Adjutant General and fully supported.  One of the listed reasons for involuntary separation was failure to respond to directed instructions, on-the-job training, and performance counseling for reasons other than inability.  Paragraph 4-1b stated that a special EER would be submitted in all cases of a request for relief.  Final approval authority to effect involuntary release for cause was granted to the State Adjutant General.

41.  Paragraph 4-1d of NGB Pamphlet 614-3(T) stated that the officer initiating involuntary removal action should be within the member's chain of command and should have had sufficient contact with the member to make a reasonable observation and analysis of the member's deficiencies.  The initiating officer would give specific reasons for recommending involuntary release and present them in writing to the member for comments or rebuttal.

42.  Paragraph 4-1d(4) of NGB Pamphlet 614-3(T) stated that the recommendation for involuntary release would be submitted through channels to the approval authority.  An EER or SEER would be part of the removal packet.
Paragraph 4-1e(2) stated that the approval authority would issue release orders and cite this paragraph as the authority.  Paragraph 4-1g stated that members released under this paragraph would revert to their unit of assignment for the remainder of their contractual obligation.

43.  Army Regulation 140-10, Assignments, Attachments, Details, and Transfers, covers policy and procedures for assigning, attaching, removing, and transferring U. S. Army Reserve soldiers.  It applies to ARNG soldiers only as specified in chapter 5 (Transfer Between the United States Army Reserve (USAR) and ARNG).

44.  Army Regulation 135-91, Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures, defines ARNG and   USAR service obligations.  Paragraph 5-5 states that the maximum distance Reserve Component soldiers may travel involuntarily between their residence and the drill training site must be within (a) a 100-mile radius of the drill site (applies only to those units that normally conduct 4 drills on 2 consecutive days); or (b) a 50-mile radius of the drill site.

45.  Title 18, U. S. Code, section 241 provides that, if 2 or more persons conspire to injure or intimidate any person, they shall be fined under this title or imprisoned not more than 1 year, or both.  Section 242 provides that, whoever, under color of law…regulation…willfully subjects any person…to the deprivation of any rights…on account of such person being an alien, or by reason of his color, or race…shall be fined under this title or imprisoned not more than 1 year, or both.

46.  Title 42, U. S. Code, section 1983 provides that every person who, under color of statute…regulation…subjects…any citizen…to the deprivation of any rights…shall be liable to the party injured in an action at law…or other proper proceeding for redress…
47.  Title 42, U. S. Code, section 1985 provides that…if 2 or more persons conspire to deter…any party or witness in any court…from testifying to any matter pending therein…the party so injured…may have an action for the recovery of damages.

48.  The Department of Defense (DOD) Directive Number 7050.6, dated           20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U. S. Code, section 1034).  This directive was reissued on 3 September 1992.  The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  (Note:  This directive was reissued on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)

49.  Army Regulation 15-185, Army Board for Correction of Military Records, is the regulation under which the Board operates.  Paragraph 2-2b states that, when an applicant has suffered reprisal under the Military Whistleblower  Protection Act, the Board may recommend to the Secretary of the Army that disciplinary or administrative action be taken against any Army official who committed an act of reprisal against the applicant.

50.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

51.  The Courts have determined that the Board cannot compel a state National Guard to make corrections to an applicant’s state records.  However, the Board may correct the applicant’s federal records. 

CONCLUSIONS:

1.  The Board supports the DOD policy of unrestricted communication with Congress, the IGs and various Government investigators, as well as the protection from reprisal against those who make or prepare to make such communications.  When such reprisals occur, they constitute an injustice of the sort the Board was created to correct.  Since the applicant’s allegations of reprisals occurred prior to the enactment of the Whistleblower Act, he does not qualify as a “whistleblower.”  Accordingly, his case was considered by this Board, not as a whistleblower case, but as any other application submitted to the Board alleging error or injustice as provided by Title 10, U. S. Code, section 1552.  

2.  The Board is not bound by precedent.  Each case is considered on its own merits.  The Board is cognizant, however, that this case is inextricably bound with the case (docket number AC98-12337/AR1998012670) pertaining to Captain O___, the applicant's commander.  Had Captain O___ not tried to support the applicant in his attempts to report allegations of wrongdoing and corruption in his unit, most likely Captain O___ would not have been discharged as and when he was.  

3.  Based upon the close connection between Captain O___'s discharge and the applicant's discharge and subsequent treatment by the TXARNG, the Board believes the applicant was also the victim of reprisals even though the Whistleblower Act was not yet official policy.

4.  However, the Board is cognizant that the similarities between Captain O___ and the applicant disappear subsequent to their discharges.  Captain O___ was discharged from the TXARNG but thereafter continued his career with a Troop Program Unit in the USAR.  The applicant was released from active duty by the TXARNG and reassigned inappropriately within the TXARNG but, rather than continue his Reserve career with the USAR, effectively ended his military career when he requested transfer to the Inactive National Guard.

5.  The Board is cognizant of the fact the applicant's delay in submitting his application was caused by ongoing appeals to state and federal courts.  However, the last appeal was acted upon in July 1986.  Captain O___ filed his application to the Board in 1998, 13 years after that action.  The applicant waited almost an additional 3 years before submitting his application to the Board.  The interests of justice could probably have better been served had he applied in 1986.

6.  Granting the full relief requested by the applicant at this point in time would offer benefits to the applicant without the Army receiving reciprocal benefits.  Due to the passage of time, favorable consideration of portions of his request would be barred by laches if the statute of limitations were waived.

7.  Saying this, the applicant should be granted some relief as a matter of equity. However, the Board is not empowered to award interest or "embarrassment" pay.

8.  It appears the AGTEX provided a specious argument when he considered the NGB Pamphlet 614-3(T) was not applicable in the applicant's case because they had not yet implemented the pamphlet within the TXARNG and because the applicant entered onto the tour approximately 3 months prior to the issuance of the pamphlet.  

9.  Equity demands that Guardsmen in the 50 different states (and territories) be treated the same.  That is why a central authority (i.e., NGB) issues certain policies.  NGB Pamphlet 614-3(T) established administrative procedures for continuing the CFTM test program for all units of the ARNG.  NGB did not qualify the pamphlet as being effective only upon the implementation of the procedures by the individual states.  Neither did the pamphlet exempt those individuals who entered into the CFTM program prior to the issuance of the pamphlet.  The pamphlet established procedures to continue the conversion, not to begin it.

10.   The AGTEX's other argument, that he also considered that the "exceptions" portion of paragraph 4-1a allowed the proposal of removal in the applicant's case, was also specious.  No attempt was made to reconcile the contrary views of the applicant's commander, his immediate rating official, with the decision to remove the applicant from FTTD.

11.  Therefore, an appropriate remedy would be to show the applicant was retained on active duty for the full 2 years of his FTTD tour and that he be paid any and all due pay and allowances.

12.  In addition, the Board is cognizant of the fact the applicant should have received an SEER upon his release from active duty.  It appears that his rater attempted to complete an SEER as a draft is available; however, it is incomplete. The applicant's ARNG records are not available.  It would not be appropriate to reconstruct an SEER at this point in time as the applicant would gain no useful benefit thereby.  It is also doubtful his indorser would provide ratings and comments satisfactory to the applicant.  However, if another SEER, one not prepared with Captain O___ as his rater, for this rating period is in his records, it would be appropriate to expunge that SEER from his records.

13.  It does not appear that any other remedy would be appropriate.

14.  The applicant contends that Army Regulation 140-10 states that the contrary-to-law removal of a member from an active reserve status is void and upon such discovery that member will be allowed to resume active participation in the Reserve.  Army Regulation 140-10 does not apply to ARNG soldiers except in reference to the transfer between USAR and ARNG units.  The regulation did not apply to the applicant's situation.

15.  The Board notes the applicant contends that after his termination the First Sergeant position reverted to an active drilling troop program unit position.  However, the only available evidence, the 5 October 1979 letter signed by Lieutenant Colonel W___, shows that the MTOE position of First Sergeant of Company C, 1st Battalion, (Airborne) 143d Infantry was terminated effective     31 October 1979.

16.  The Board acknowledges that the applicant suffered a break in service as a result of his termination from his full-time duty status with the TXARNG.  However, there is reasonable doubt that his tour would have been extended beyond July 1981; therefore, it appears unlikely that he would have been eligible to retire in 1984.  Had he attempted to continue his career with the USAR, he would have had his 8 years of Reserve service in by now.

17.  The Board regrets that the TXARNG has continued to refuse to take any positive corrective or remedial action for Captain O___ or the applicant.  Unfortunately, the Board cannot compel a state National Guard to make corrections to an applicant’s state records.

18.  To presume that had the applicant not been discharged he would have been promoted before the end of his enlistment or appointed a warrant officer is purely speculative.  The Board concludes such speculation is insufficient to warrant granting the related relief requested.  Considering his failure to continue his military career, to recompute the applicant's promotion eligibility dates or his MRD at this time is unnecessary.  

19.  Since the applicant's ARNG records are not available, the Board cannot consider his request that any pertinent changes to his DA Form 2-1 be made or that false and adverse information during the pertinent rated periods be removed from his files.  

20.  Since the applicant's case does not meet the requirement to be considered a Whistleblower case, Army Regulation 15-185, paragraph 2-2.b does not apply.

21.  The Board has no authority to take actions in accordance with Titles 18 or 43, U. S. Code.  The Board is not a judicial authority that can issue writs to order execution of its decisions.

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

RECOMMENDATION:

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

     a.  voiding Orders 198-18, State of Texas, Adjutant General's Department dated 15 October 1979 as pertains to the applicant;

     b.  voiding the applicant's DD Form 214 for the period ending 31 October 1979; 

     c.  voiding the applicant's subsequent reassignment orders (Orders 41-1, Headquarters, 36th Airborne Brigade, TXARNG dated 30 October 1979; Orders 21-1, Command and Control Headquarters, TXARNG dated 3 May 1980 transferring the applicant to Command and Control Headquarters, TXARNG in Austin, TX and the related amendment dated 5 May 1980);

     d.  voiding the applicant's transfer to the Inactive National Guard; and

     e.  showing that the applicant remained on active duty in an FTTD status from 2 July 1979 through 1 July 1981.

2.  That the applicant be paid any and all due back pay and allowances as a result of this correction.

3.  That if an SEER, not prepared with Captain O___ as his rater, for the period January through October 1979 is in the applicant's records, then it be expunged from his records.

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

BOARD VOTE:  

__RVO__  __GJW  _  __ RJO __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_ Raymond V. O’Connor, Jr._
		         CHAIRPERSON

INDEX

CASE ID	AR2002070990	
SUFFIX		
RECON		
DATE BOARDED	2003/02/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.