MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 February 2000                   
	DOCKET NUMBER:   AR1999033359

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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:  Reinstatement of his commission with retroactive pay and allowances, time in grade/service, standby promotion, et cetera.

APPLICANT STATES:  That he was put out of the Washington Army National Guard (WAARNG) and lost his commission because of his status at an active duty school.  He states documents will follow in three weeks (application is dated 24 May 1999) but no additional documents have been provided.

COUNSEL CONTENDS:  Counsel makes no contention.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 1 April 1982 and was released from active duty on 22 July 1983 for hardship.  He was assigned to the U. S. Army Reserve (USAR) Control Group (Annual Training).

The Board processed a previous case for the applicant in which it was noted he was commissioned as a second lieutenant on 5 March 1988 and vacated his commission on 5 August 1988, returning to enlisted status.  The reason for the vacation was not in the available records.  The only official evidence that refers to his commission in the records now available is an untitled and unnumbered document, pages 3 and 4 only.  Page 3 indicates the applicant held the grade of second lieutenant as an Individual Ready Reserve/Individual Mobilization Augmentee from 5 March 1988 through 25 May 1993.  Page 4 has a 5th endorsement wherein the Adjutant General of the State of Washington requested that Federal recognition be extended to the applicant as a first lieutenant “to date from 15 Sep 95.”

On 26 May 1993, the applicant was appointed a warrant officer one (WO1) in the USAR.

On 11 July 1994, the applicant entered the WAARNG as a warrant officer.  He was discharged from the WAARNG and as a reserve of the Army on 24 July 1996, in the rank of Chief Warrant Officer Two (CW2), with a general discharge as a result of resignation in lieu of elimination.  His resignation paperwork is not available.

On 16 December 1996, the applicant signed a memorandum for record, subject Vacating of Commission as an Officer of the Army.  He stated “In order to receive a new assignment in the Army Reserve available only to enlisted personnel, please accept this memorandum as a vacating/resignation of appointment/commission as a Reserve Officer, 1LT/02, of the Army.”

On 23 January 1997, the applicant enlisted in the USAR.

On 27 August 1997, the applicant enlisted in the California Army National Guard (CAARNG).  (His DD Form 4/1 shows 27 August 1997; his NGB Form 22 shows 22 August 1997).

A 10 October 1997 memorandum for record from the Personnel Security Manager, WAARNG states she had received an order from the Army Reserve Personnel Center releasing the applicant from the USAR Control Group (Reinforcement) to the CAARNG in military occupational specialty (MOS) 18D30
 (Special Forces Medical Sergeant).  She informed the CAARNG that his security clearance had been suspended because he falsified documents and per an investigation performed in WAARNG he did not have the MOS as he claimed.  She stated a check also showed that he had a DD Form 214 allegedly from the WAARNG showing he had an honorable discharge but that the WAARNG did not produce that document.

A 10 October 1997 memorandum for record from the Personnel Security Clearance Specialist, CAARNG stated the applicant was going to be processed for fraudulent enlistment because he held a previous discharge which would have made him ineligible for enlistment into the CAARNG.

On 1 November 1997, the applicant was discharged from the CAARNG with a general discharge for fraudulent entry.

A 21 May 1998 memorandum for record from a member of the CAARNG, apparently in response to an inquiry from the applicant’s lawyer, noted “We have _____ dead to rights on fraudulent entry” and if they revoked his discharge he would be prosecuted under the Uniform Code of Military Justice.  

Army Regulation 135-175 provides policy and criteria for the separation of officers of the Army National Guard and the USAR.  In pertinent part, it states that an officer who has been notified of being considered for involuntary separation may submit a resignation at any time prior to final action taken on the board proceedings.  Commanders will ensure that there is no element of coercion in connection with a resignation in lieu of involuntary separation.

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s NGB Form 22 from the WAARNG shows he was discharged as a warrant officer, not a commissioned officer.  The Board concludes that the untitled and unnumbered document in his records which refers to his commission is insufficient evidence to show he really was a commissioned officer at the time and he provides no corroborating evidence.

3.  The applicant’s request for resignation in lieu of elimination is not available; however, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__aao___  __clg___  ___mw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033359	
SUFFIX		
RECON		
DATE BOARDED	20000216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.