MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           25 September 2003                   
		DOCKET NUMBER:  AR2003090557

	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	
	Mrs. Victoria A. Donaldson		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Regan K. Smith		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, reconsideration of his request to have his National Guard records corrected to show that he was not separated on 27 April 1996, but rather that he had extended or reenlisted.  This request for reconsideration resulted from an order of remand by the United States District Court, Northern District of Indiana, on 29 July 2003.

APPLICANT STATES:  In the applicant's original 10 November 1999 application to the Army Board for Correction of Military Records (ABCMR), he stated, in effect, that he should have been allowed to serve until the end of his enlistment, that he was discharged due to his age, and that his enlistment contract was breached.

NEW EVIDENCE OR INFORMATION:  

Incorporated herein by reference are military records which were summarized in the ABCMR's previous consideration of the applicant's case in Docket Number AR2001060564 on 29 January 2002.

The applicant originally applied to the ABCMR on 10 November 1999 (Docket Number AC1999033532) wherein he requested that his records be corrected by allowing him to serve until the end of his contract.  He contended that he was discharged based on age discrimination and that his enlistment contract was broken.  On 13 July 2000, that application was administratively closed and returned to the applicant for insufficient evidence.  

The applicant subsequently reapplied to the ABCMR for relief on two additional occasions.  Both of these applications were administratively closed based on insufficient evidence and were returned to the applicant without action.  

The applicant submitted a new application, dated 3 June 2001, again requesting his records be corrected by allowing him to serve until the end of his contract.  He again contended that he was discharged based on age discrimination and that his enlistment contract was broken. 

On 29 January 2002, the Board considered the applicant's request in Docket Number AR2001060564 and denied relief.

Included in the applicant's previous application to this Board were United States Army Reserve Personnel Command retirement orders dated 22 September 1999; Department of Military Affairs notification of eligibility for retired pay at age 60; State of Illinois, Department of Military Affairs discharge orders dated 29 May 1996; National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) dated 27 April 1996; Department of the Army Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 5 November 1995; NGB Form 22-5-R (Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard) dated 7 June 1988; Department of the Army Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 18 November 1989; Department of the Army Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 14 December 1986; a NGB Retirement points history statement prepared on 10 June 1996; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 1 November 1968; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 22 January 1966; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 17 March 1964; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective14 December 1962; and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 20 September 1957.  

Review of the applicant's previous application in Docket Number AR2001060654 and his current case on remand from the Court reveals that no new evidence has been submitted with the remand to reconsider this case.

The order of remand by the United States District Court, Northern District of Indiana, dated 29 July 2003, is the basis for reconsideration of the applicant's case by the ABCMR.

In the remand document, the court noted the following issue " whether it was arbitrary and capricious for the ABCMR to have "misconstrued the crux of the [applicant's name omitted] case because [the ABCMR did not address the claim] that the Illinois Army National Guard discriminated against him [the applicant] on the basis of his age when they transferred him to the Army Reserve."

The court remand document states that "the ABCMR believes that the interests of justice will be best served by allowing it to address [the applicant's] issue: " Was [the applicant's] discharge from the Illinois Army National Guard and transfer to the U.S. Army Reserves motivated by age discrimination?"

The applicant's service personnel records show that he was born on 5 December 1938.  He enlisted in the United States Navy (USN) on 1 March 1956, that he was honorably released from active duty on 20 September 1957 and that he was transferred to the United States Naval Reserve (USNR).

On 12 June 1962, the applicant enlisted in the Indiana Army National Guard (INARNG).

He was ordered to active duty for training (ADT) on 29 June 1962, and was released from ADT on 14 December 1962.  He continued to serve in the INARNG until he was honorably discharged on 15 July 1963, in order to reenlist.

The applicant enlisted in the Regular Army on 16 July 1963.  He continued to serve until he was discharged under honorable conditions on 17 March 1964.
After a break in service, he enlisted in the USNR on 6 March 1965, and continued to serve until he was honorably discharged on 28 January 1966. 

After a break in service, he reenlisted in the Regular Army on 2 April 1968, and continued to serve until he was discharged under honorable conditions on 1 November 1968

After a break in service, he enlisted in the US Army Reserve (USAR) on 1 January 1975, for a period of 6 years. He continued to serve until he was honorably discharged in order to reenlist. He reenlisted on 11 January 1981, for a period of 6 years.

On 14 December 1986, he extended his enlistment for a period of 3 years with an established expiration of term of service (ETS) of 10 January 1990.

On 7 June 1988, he voluntarily transferred to the Illinois Army National Guard (ILARNG).

On 18 November 1989, he extended his enlistment for a period of 6 years resulting in an established ETS of 10 January 1996.

On 5 November 1995, at the age of 56 years and 11 months, he extended his enlistment for a period of 2 years and 1 month resulting in an established ETS of 30 December 1998.  On 23 January 1996, the Illinois Army and Air National Guard notified the applicant by letter [commonly referred to as the "20 year letter"] that he had completed the required years of service to be eligible for retired pay at age 60.

Department of Military Affairs, State of Illinois Orders Number 104-87, dated 29 May 1996 show that the applicant was discharged from the Army National Guard and transferred to the United States Army Reserve Control Group (Reinforcement) effective 27 April 1996. 

Department of Military Affairs, State of Illinois Orders Number 104-87 show that the applicant was separated under transaction code "SC".  National Guard Pamphlet (NGP)(AR) 25-10 shows that transaction code "SC" identifies an Army National Guard soldier separated by "selective or qualitative retention action."

The applicant's NGB Form 22 with an effective date of 27 April 1996 lists in item 23 (Authority and Reason) the entry "Orders 104-87, Department of Military Affairs, State of Illinois, Dated 29 May 1996 and National Guard Regulation 
600-200-Nonselection."

The applicant's NGB Form 22 with an effective date of 27 April 1996 contains in item 24 (Character) the entry, "Honorable."

The applicant's NGB Form 22 with an effective date of 27 April 1996 lists in item 26 (Reenlistment Eligibility) the entry, "RE-4."

The applicant's records contain seven DA Form 2166-7s (NCO Evaluation Report)(NCOER) covering the period December 1988 through November of 1995.

The NCOER for the period December 1988 through November 1989 shows in Part IV-Values/NCO Responsibilities (Rater) that the applicant received a rating of success in each of the five attributes.

In Part IVc (Physical Fitness & Military Bearing) of the NCOER for the period December 1988 through November 1989 contains the entry " Cardiovascular Screen Not Completed."

The rater placed his "X" in the block labeled "Marginal" in Part Va (Overall Performance) of the NCOER for the period December 1988 through November 1989.

The senior rater (SR) placed his "X" in the fourth of five blocks [block one is the highest rating and block 5 is the lowest] indicating "Fair" overall performance in Part Vc (Senior Rater Overall Performance) of the NCOER for the period December 1988 through November 1989.

The SR placed his "X" in the fourth of five blocks [block one is the highest rating and block 5 is the lowest] "Fair" in Part Vd (Senior Rater Overall potential for promotion and/or service in positions of greater responsibility) on the NCOER for the period December 1988 through November 1989.

The applicant's official military personnel file contains a memorandum for record dated 8 May 1990.  The author, a captain serving as commander states "that the applicant is a minimum performance NCO" and that the applicant "barely meets acceptable standards."  The author continued that "the applicant failed to provide any positive function as a cook and only occasional proficiency as an NCO."  He concluded that "the applicant has not progressed in 14 years and as a result of his personal observation, he nonconcurs with the rater's and senior rater's evaluation."

The NCOER for the period December 1989 through November 1990 shows in Part IV that the applicant received a rating of success in four of the five attributes. 
The applicant received a rating of "Needs Improvement" in Part IVc and the entries of "Awaiting Further Evaluations and "Cardiovascular screen not cleared" in the narrative section.

The rater placed his "X" in the block labeled "Fully Capable" in Part Va of the NCOER for the period December 1989 through November 1990.

The SR placed his "X" in the second of five blocks indicating "Successful" overall performance in Part Vc of the NCOER for the period December 1989 through November 1990.

The SR placed his "X" in the second of five blocks indicating "Superior" overall potential in Part Vd of the NCOER for the period December 1989 through November 1990.

The NCOER for the period December 1990 through November 1991 shows in Part IV that the applicant received a rating of success in all of the five attributes.  

The rater placed his "X" in the block labeled "Fully Capable" in Part Va of the NCOER for the period December 1990 through November 1991.

The (SR) placed his "X" in the third of five blocks indicating "Successful" overall performance in Part Vc of the NCOER for the period December 1990 through November 1991.

The SR placed his "X" in the third of five blocks indicating "Superior" overall potential in Part Vd of the NCOER for the period December 1990 through November 1991.

The NCOER for the period December 1991 through November 1992 shows in Part IV that the applicant received a rating of success in four of the five attributes. The applicant received a rating of "Needs Improvement" in Part IVc and the entry of "Cardiovascular screen not cleared" in the narrative section.

The rater placed his "X" in the block labeled "Fully Capable" in Part Va of the NCOER for the period December 1991 through November 1992.

The SR placed his "X" in the fourth out of five blocks indicating "Fair" overall performance in Part Vc of the NCOER for the period December 1991 through November 1992.

The SR placed his "X" in the fourth out of five blocks indicating "Fair" overall potential in Part Vd of the NCOER for the period December 1991 through November 1992.

The NCOER for the period December 1992 through November 1993 shows in Part IV that the applicant received a rating of success in four of the five attributes. The applicant received a rating of "Needs Improvement" in Part IVc and the entry of "Cardiovascular screen not cleared" in the narrative section.

The rater placed his "X" in the block labeled "Fully Capable" in Part Va of the NCOER for the period December 1992 through November 1993.

The SR placed his "X" in the fourth of five blocks indicating "Fair" overall performance in Part Vc of the NCOER for the period December 1992 through November 1993.

The SR placed his "X" in the fourth of five blocks indicating "Fair" overall potential in Part Vd of the NCOER for the period December 1992 through November 1993.

The NCOER for the period December 1993 through November 1994 shows in Part IV that the applicant received a rating of success in all of the five attributes.  

The rater placed his "X" in the block labeled "Fully Capable" in Part Va of the NCOER for the period December 1993 through November 1994.

The (SR) placed his "X" in the number third of five blocks indicating "Successful" overall performance in Part Vc of the NCOER for the period December 1993 through November 1994.

The SR placed his "X" in the third of five blocks indicating "Superior" overall potential  in Part Vd of the NCOER for the period December 1993 through November 1994.

The NCOER for the period December 1994 through November 1995 shows in Part IV that the applicant received a rating of success in four of the five attributes.

The applicant received a rating of "Needs Improvement" in Part IVc and the entry of "EM has no completed Phase II Cardiovascular Screening." 

The rater placed his "X" in the block labeled "Marginal" in Part V of the NCOER for the period December 1994 through November 1995.

The SR placed his "X" in the fifth of five 5 block indicating "Poor" overall performance in Part Vc of the NCOER for the period December 1994 through November 1995.

The SR placed his "X" in the fifth of five blocks indicating "Poor" overall potential in Part Vd of the NCOER for the period December 1994 through November 1995.

Department of Military Affairs, State of Illinois orders show that the applicant was separated from the ILARNG based on nonselection for retention by an Illinois Army National Guard Qualitative Retention Board.

Records show that officials of the ILARNG held a Qualitative Retention Board which was convened on 6 February 1996 and adjourned on 8 February 1996.

Records show that the results of the Qualitative Retention Board were approved on 8 February 1996 by appropriate officials of the ILARNG.

The applicant was notified in a 27 February 1996 memorandum from the Adjutant General of the State of Illinois, that he was not among those recommended for retention in the ILARNG.  The memorandum advised the applicant that he must fill out a DA Form 4187 (Personnel Action) and elect to either, discharge, transfer to the USAR Control Group (Reinforcement) or transfer to the Retired Reserves.

The memorandum by the Adjutant General of Illinois further states that the applicant must be separated no later than 27 April 1996.

Orders show that on 27 April 1996, the applicant was honorably discharged from the ILARNG and transferred to the USAR Control Group (Reinforcement).

The applicant was subsequently transferred to the Retired Reserve on 25 September 1997, at his request, based on a nonparticipation notification from the Army Reserve Personnel Command (AR-PERSOM).  

On 5 December 1998, the applicant's 60th birthday, he was placed on the Retired List in the rank and pay grade of sergeant/E-5.  

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

Paragraph 7-3.1 of Army Regulation 140-10 states that an enlisted solder who has accrued 20 years of qualifying service for retired pay is required to attain 
50 points annually to be retained in an active status. Enlisted soldiers who failed to attain 50 points by the anniversary of their retirement year ending (RYE) date will be removed from an active status.

Army Regulation 135-205 (Army National Guard and Reserve Enlisted Personnel Management) prescribes in pertinent part, policies, responsibilities, and procedures for the Qualitative Retention Program.

Paragraph 4-4 of Army Regulation 135-205 states that Qualitative Retention Boards will consider all unit soldiers who are within the following zones by the date the board convenes; (1) ARNG a) Have a least 20 years of qualifying service for retired pay at age 60 as verified by a notification of eligibility for retired pay issued per Army regulation 135-80, paragraph 2-3. and b) Where previously selected for retention, however, the commander has referred them to the board for revalidation of their retained status.

Paragraph 4-18 of Army Regulation 135-205 states that soldiers who were not selected for retention are considered fully qualified for continued participation in the USAR as assigned IRR soldiers.  This is provided that they have not reached 60 years of age.

Army Regulation 40-501 (Standards of Medical Fitness) provides for information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.

Paragraph 8-25 of Army Regulation 40-501 states that the intent of the cardiovascular screening program is to (1) Conduct health risk factor screening for all asymptomatic Active Army, Army National Guard and USAR soldiers; (2) Emphasize identification of individual cardiovascular risk factors; (3) Provide advice and assistance in controlling risk factors; and (4) Provide instruction for safe and regular aerobic exercise.

Paragraph 8-25 of Army Regulation 40-501 states that the cardiovascular screening program for all Army National Guard and USAR soldiers will be accomplished at the first physical examination on or immediately after the 40th birthday.

National Guard Pamphlet (AR) 25-10 (Standard Installation/Division Personnel-System-Army National Guard (SIDPER-ARNG) Data Element Dictionary) provides the data elements currently used in the Standard Installation/Division Personnel System –Army National Guard (SIDPERS-ARNG).  This document provides the transcription codes listed on the applicant's discharge orders in this case.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

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

1.  Based on the order of remand issued by the United States District Court, Northern District of Indiana, dated 29 July 2003, the Board considered the applicant's contention the he was separated from the ILARNG based on age discrimination.  

a.  The Board noted that the applicant was considered by and not recommended for retention by an ILARNG Qualitative Retention Board.

b.  The Board further noted the seven NCOERs tendered for the period December of 1988 through April of 1996 which show that applicant did not complete required cardiovascular screening in accordance with Army Regulation 40-501.

c.  The Board also noted the seven NCOERS tendered during the period December of 1988 through April of 1996, show that the applicant received an overall potential rating of "Success" on three reports, a rating of "fair" on three reports and a rating of "Poor" on one report.

d.  In addition, the Board noted that the evaluation on which the applicant received the lowest ratings was for the period December 1994 through November 1995 which was the last NCOER that the applicant received prior to the convening date of the Qualitative Retention Board by the ILARNG. 

e.  Although the specific reasons for non-selection for retention by a Qualitative Retention Board are not announced, his less than satisfactory NCOERs could have resulted in the applicant's nonselection for retention.

f.  The Board further noted that the applicant was properly notified of the results of the Qualitative Retention Board by the Adjutant General of the State of Illinois.

2.  Based on the foregoing facts, the Board concluded that the applicant was separated from the ILARNG as a result of the decision of the Qualitative Retention Board not to retain him for further National Guard service.  

3.  Further, the Board determined that there is no evidence in the available records and the applicant does not provide evidence that the decision of the ILARNG Selective Retention Board was based on the applicant's age or was otherwise flawed or in contravention of regulations.  

4.  The Board considered the applicant's contentions that the ILARNG breached his enlistment contract by separating him prior to his established ETS date of 
30 December 1998 and that in effect, that he should not have been separated from the ILARNG on 27 April 1996.

a.  The Board noted that the results of the ILARNG Qualitative Retention Board required that the applicant be separated no later than 27 April 1996 by the ILARNG, in accordance with Army Regulation 135-205.  

b.  Therefore, the applicant was not entitled to serve until he reached his ETS date of 30 December 1996 based on the nonselection for retention by the ILARNG Qualitative Retention Board. 

c.  The Board noted that on 27 April 1996 the applicant was honorably discharged and transferred to the USAR Control Group (Reinforcement) in accordance with applicable regulations.  

d.  The Board also noted that the applicant was subsequently transferred to the Retired Reserve on 25 September 1997 in accordance with applicable regulations.

e.  The applicant completed the required years of service to be eligible for retired pay at age 60, and was placed on the Retired list on 5 December 1998 his 60th birthday in accordance with applicable law.

f.  Based on the foregoing, the Board determined that the ILARNG did not breach the applicant's enlistment contract and that the applicant's separation on 27 April 1996 from the ILARNG and subsequent transfer to the USAR Control Group (Reinforcement) was in accordance with applicable laws and regulations.  

g.  Therefore, there is no basis to correct or amend the applicant's records to show service in the ILARNG after the applicant separated on 27 April 1996.

5.  In view of the foregoing, there is no basis to correct the records of the individual concerned to show he was extended or reenlisted or to continue him as a member of the ILARNG until 5 December 1998.

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

__JNS __  ___LDS _  ___RKS__  DENY APPLICATION

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

INDEX

CASE ID	AR2003090557	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/09/25	
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.	110.0000.0000	
2.		
3.		
4.		
5.		
6.