IN THE CASE OF: BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150018349 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150018349 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20150003309 on 13 October 2015. _____________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150018349 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20150003309 on 13 October 2015. Specifically, he requests an upgrade of his discharge from the Virginia Army National Guard (VAARNG) and pay as a sergeant (pay grade E-5) for an unspecified period, based on his service in the Simultaneous Membership Program (SMP). 2. The applicant states in a four-page, self-authored statement: a. He was never paid at the rank of SGT by the ARNG during his time in the SMP; he has his earning statements to prove it. Also, he was illegally transferred from a signal battalion to an air defense artillery battalion. b. In 1991, his Professor of Military Science (PMS) was given false information about his leadership abilities. He decided not to return to the Reserve Officer Training Corps (ROTC) for his senior year because he was passed over and not selected to attend the advance camp. c. He only missed training from 30 May to 13 June 1992 and on from 17 to 18 July 1992, due to an automobile accident/injury. He provided his unit medical notes from his chiropractor and physical therapist; but they were not accepted. d. He would like a copy of the certified/registered mail that the unit claimed it used to contact him about his absences. 3. The applicant provides no additional evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by ABCMR in Docket Number AR20150003309 on 13 October 2015. 2. The applicant provides a new argument in the form of a four-page, self-authored statement, wherein he contends he was never paid, he was illegally transferred, and he explains his rationale for not returning to the ROTC. These statements were not considered by the Board in its initial consideration of his request; therefore, they constitute new evidence that will now be considered. 3. The applicant enlisted in the VAARNG on 28 April 1987. He was assigned to Company D, 230th Signal Battalion, in Virginia Beach. He was promoted to private/E-2 on 2 January 1988, to private first class (PFC)/E-3 on 1 May 1988, and to specialist (SPC)/E-4 on 29 May 1990. 4. On 13 December 1990, an ARNG Liaison Officer advised the Commander, 230th Signal Battalion, the applicant desired an SMP slot. His unit had no SMP slots; therefore, reassignment to a unit that had an SMP slot was warranted to accommodate his desire. 5. On 20 December 1990, the applicant's commander approved the request to transfer the applicant to a unit that had an SMP slot. Accordingly, the applicant was reassigned to the 3rd Battalion, 111th Air Defense Artillery Regiment, VAARNG, effective 1 May 1991. 6. On 19 February 1991, the applicant executed a DA Form 597 (Army Senior ROTC Non-scholarship Contract). He listed Norfolk State University as his educational institution and the completion date as May 1992. 7. On 17 December 1991, following notification of initiation of ROTC disenrollment and appointment of an ROTC retention board, an informal board convened at Norfolk State University to determine if the applicant should be disenrolled from the ROTC program by reason of failing to maintain requirements for enrollment and displaying inaptitude for military service by his intent to evade the terms of his contract. 8. The board found the applicant did enter into a valid ROTC contract and did receive money from the Government in the form of a subsistence allowance, but displayed inaptitude for military service. The board recommended the applicant be disenrolled from the ROTC program for reasons other than willfully evading or voluntary breaching the terms of his contract. The appointing authority concurred with the findings and recommendations. 9. On 18 December 1992, following a legal review for legal sufficiency, the applicant was ordered disenrolled from the ROTC under the provisions of Army Regulation 145-1 (Senior ROTC Program Organization, Administration, and Training), paragraph 3-43. 10. Between February and July 1992, the applicant was absent from scheduled unit training assemblies (UTAs) or multiple unit training assemblies (MUTAs) on the following dates 14 February, 20 to 22 March, 30 May to 13 June, and 17 to 18 July 1992. 11. In each case, by certified/registered mail, the applicant's immediate commander notified him that he was absent from the scheduled UTAs/MUTAs for the scheduled period. In each letter, the commander also advised him that he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within one year would declare him an unsatisfactory participant. In each case, he was also provided an opportunity to explain and/or provide justification for the unexcused periods. The certified mail receipts show the applicant accepted and signed for these letters. 12. Orders 16-4 issued by Headquarters, 3rd Battalion, 111th Air Defense Artillery, dated 21 July 1992 reduced him from SPC/E-4 to PFC/E-3 effective 21 July 1992 by reason of inefficiency. 13. Orders 146-57 issued by the VAARNG on 29 July 1992, discharged him from the ARNG and assigning him to the U.S. Army Reserve (USAR) Control Group (Annual Training), effective 31 July 1992, by reason of being an unsatisfactory participant, in accordance with chapter 8 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management). 14. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was discharged from the VAARNG on 31 July 1992 as an unsatisfactory participant, in accordance with chapter 8 of NGR 600-200. His was given an under honorable conditions (general) characterization of service and his rank/grade is shown as "PFC/E-3." 15. Orders 5-2, issued by the U.S. Army Instructor Group, Norfolk State University on 12 March 1993, released him from his cadet status in the USAR Control Group (ROTC), under the provisions of Army Regulation 145-1, paragraph 3-45, effective 18 December 1992. 16. Orders D-05-538300, issued by the USAR Personnel Center (ARPERCEN) on 2 May 1995, honorably discharged him from the USAR, effective 2 May 1995. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components. This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a 1-year period. 3. Army Regulation 135-178 (Separation of Enlisted Personnel) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons. Chapter 7 of the regulation in effect at the time governed separation for misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. An honorable characterization of service is not authorized for a member who is no longer in an entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate. 4. Army Regulation 135-178 states the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. A general discharge is warranted when a significant negative aspect of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record. 5. Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program. Chapter 3-43 (Disenrollment, Discharge, Separation, Transfer, and Leave of Absence) states a nonscholarship cadet may be disenrolled by the PMS for the reason of inaptitude for military service as demonstrated by lack of general adaptability, skill, hardiness, ability to learn, or leadership abilities. 6. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reduction functions of the military personnel system. Soldiers will be promoted to cadet (E-5) effective the date the Soldier is contracted in both the Army National Guard and the ROTC Advanced Course (emphasis added). Promotions are valid only for the purpose for which they were awarded. A Soldier will be administratively returned to their preappointment ranks upon release from such status. These ranks are not valid for future determinations. 7. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes the appointment, reassignment, management, and mobilization of ROTC cadets under the SMP. a. Paragraph 9-14o states a Soldier disenrolled from the ROTC Basic/Advanced Course (MS III/MS IV) is dropped from ROTC/SMP participation, retained as an assigned member of the TPU, and serves in an enlisted rank (Army Regulation 600-8-19) until the expiration of the term of their current contractual or statutory service obligation. This is provided the Soldier is not otherwise processed for discharge per Army Regulation 135-178. b. Paragraph 9-14q states the voluntary or involuntary release of a cadet from the ROTC/SMP will require reassignment to Control Group (ROTC) administered by an ROTC Region commander, or discharge concurrent with disenrollment (emphasis added). 8. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides for the personnel management of ARNG officers. Chapter 13 covers the SMP and states the SMP is a dual-status program that requires Reserve Component enlisted status and ROTC participation. Army ROTC cadets are required to serve as SMP cadets when participating as non-scholarship ARNG member/USAR Senior ROTC cadets. a. Enlisted personnel who take part in the SMP and who are enrolled in the ROTC advanced course serve and are paid in pay grade E-5 or a higher enlisted grade held, are coded as holding military occupational specialty 09R, and are trained as officers train. In the absence of training, they are used in an appropriate supervisory capacity as determined by the commander of the unit to which assigned or attached. They are also subject to the same standards for satisfactory performance applicable to other personnel assigned to the unit. b. An ARNG enlisted member who wishes to participate as an SMP nonscholarship cadet agrees that his or her advancement to pay grade E-5, when awarded as a result of becoming an SMP member, is effective as long as he or she continues to be an SMP participant. Should a cadet cease to be an SMP participant or be disenrolled for any reason from the ROTC Advanced Course, the cadet would revert back to the grade held immediately prior to advancement to pay grade E-5 as an SMP participant unless the provisions of Army Regulation 145-1 dictate a higher grade. DISCUSSION: 1. The available evidence shows, and the applicant admitted to, being absent from scheduled unit training assemblies and/or MUTAs on multiple occasions. In each instance, his chain of command notified him in writing and he acknowledged the notification as required in accordance with the governing regulations. 2. The applicant contends he provided his command a medical note after an automobile accident, which explained his absences; however, it was not accepted. His record does not contain, nor does he provide, any evidence that suggests he was examined by a military doctor to determine and authenticate a medical condition caused his unexcused absences. There is a presumption of government regularity in the conduct of its affairs. 3. Accordingly, his chain of command initiated separation action for unsatisfactory participation. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. He was released and transferred to the USAR Control Group (Annual Training) in accordance with regulatory guidance with an under honorable conditions (general) discharge. 4. The applicant's record indicates he executed an ROTC/SMP contract and entered the ROTC program in August 1990. In accordance with the applicable regulation, enlisted personnel who take part in the SMP and who are enrolled in the ROTC advanced course serve and are paid in pay grade E-5 or a higher enlisted grade held. As a result of his decisions and actions, an ROTC retention board was held and he was disenrolled for willfully evading or voluntary breaching the terms of his contract. In accordance with applicable regulatory guidance, he reverted back to his rank/grade at the time of his enrollment, which was SPC/E-4. 5. There is no evidence in his record nor does he provide any that shows he was not properly paid during his ROTC period of service. 6. He requested proof as to his absences; he may submit a request to the National Personnel Records Center for a copy of his records at www.archives.gov/veterans/miltary-service-records/ or call 1-314-801-0800 for assistance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018349 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018349 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2