MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:  30 September 2003 
		DOCKET NUMBER:  AR2002083342

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Melvin H. Meyer		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:  Revocation of Orders Number 327-005, dated 23 November 1999, reinstatement of his Active/Guard Reserve (AGR) status, and restoration of back pay and benefits lost as a result of his removal from the AGR Program.  He also requests transfer to a military occupational specialty (MOS) for which he is qualified.  

APPLICANT STATES:  In effect, that Orders Number 327-005, dated 23 November 1999 should be revoked, that he should be reinstated in the AGR, restored with back pay and benefits lost as a result of his removal, and transferred to an MOS for which he is qualified.  In support of his application, he submits copies of his:  DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice, (UCMJ), dated 5 January 1999; a memorandum, dated 16 June 1999; two evaluation reports; and three affidavits.

COUNSEL CONTENDS:  Attorney, as counsel for the applicant, contends that part of the applicant's release from the AGR Program was an Article 15 for disobeying an order because he returned from a military school due to illness of his mother.  He was ordered to remain home by his commander rather than follow through with the Red Cross procedures.  As a result, he received non-judicial punishment, which was used as a basis for his removal from AGR status, which was unjust.  His commander had not been consulted by the battalion commander and believed that the Article 15 and his removal from the AGR Program was unfounded and without merit.  His battery commander was circumvented and not allowed to discipline one of his own soldiers and the Article 15 proceedings were administered by the next level commander pursuant to regulation that allowed the proceedings without the possibility of any appeal.  The applicant's separation from AGR status was completed without consulting the commander and the applicant was not allowed to appear before an administrative board to contest his removal.  He was therefore denied due process, which was unjust.  

Counsel contends that the applicant was removed from AGR status on 24 November 1999, one year from being reassigned as a motor transport operator (88M), for failure to meet MOS qualification standards.  However, according to regulation, if he did not qualify within 12 months, he should have been reassigned to a position for which he was qualified before separation from AGR status.  The applicant submitted two requests to attend the motor transport operator course and was denied on both occasions.

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his reason for removal as "unsatisfactory performance."  However, according to regulation, commanders are required to attempt rehabilitation before initiating separation and the guidelines for initiating procedures for involuntary separation require that, among other factors, the member's military record, his potential for further service, and his ability to perform full time support duties in a reasonable manner are all to be considered.  His military record shows that he was the top recruiter for the state of New Mexico.  His evaluation reports for the past two years in the AGR Program demonstrated that he was able to perform his duties effectively and in a reasonable manner.  

Counsel further contends that the applicant felt he should have been considered for reassignment as a production recruiter to provide clear potential for further service; however, this factor was not considered.  The guidelines for involuntary separation provided in National Guard Regulation (NGR) 600-5, were not met and his release from active duty (REFRAD) was completely improper under the provisions of Army Regulation 135-178.  This regulation applied to separation from the Army National Guard of the United States (ARNGUS) and not release from AGR status.  If found to be applicable, procedures under Army Regulation 135-178 were not followed because he was not allowed to present his case before a board of officers. 

EVIDENCE OF RECORD:  The applicant's military records show he enlisted in the Regular Army on 30 July 1973, as a clerk typist, in military occupational specialty (71B).  He was separated from active duty on 31 October 1975 and was transferred to the USAR Control Group (Annual Training).  His DD Form 214 (Report of Separation from Active Duty) shows that he was charged with 96 days of lost time.

The applicant's records contain a DA Form 1059 (Academic Evaluation Report) that shows he completed the finance specialist course in MOS 73C on 7 September 1980.

On 4 April 1982, he reenlisted in the USAR, in MOS 73C20, for a period of  5 years. 

He was promoted to staff sergeant (SSG/E-6) with an effective date and date of rank (DOR) of 21 November 1982, in MOS 73C30.

On 20 October 1986, the applicant enlisted in the New Mexico Army National Guard (NMARNG) as an administrative specialist, in MOS 71L, for a period of     3 years. 

On 1 March 1990, the applicant was ordered to full-time National Guard Duty in the AGR, for a period of 3 years, in MOS 00E40, as a production recruiter.  
On 8 February 1991, the applicant was awarded the primary MOS (PMOS) of 00E30, recruiter.

On 15 July 1991, the applicant was reassigned as a production recruiter with duty in Las Vegas, New Mexico effective 15 August 1991.

He was promoted to sergeant first class (SFC/E-7) with an effective date and DOR of 15 July 1993.

On 3 August 1993, the New Mexico Department of Military Affairs notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60 (20-Year Letter).

On 27 March 1996, orders were published releasing the applicant from duty as a production recruiter to perform the duties as strength maintenance noncommissioned officer (NCO), effective 4 March 1996. 

On 22 October 1997, he was punished under Article 15, UCMJ, for an alleged false travel voucher claiming reimbursement for time spent away from his home of record (HOR).  His punishment consisted of a reduction to the pay grade of   SSG/E-6 immediately, reduction to pay grade of E-5 (suspended), and a forfeiture of pay. 

The applicant was reduced to the pay grade of E-6/SSG with an effective date and DOR of 24 October 1997.  On 13 April 1998, orders were revoked to show his DOR as 21 November 1982.

On 5 January 1999, he was punished under Article 15, UCMJ, for failure to obey a lawful order from a superior commissioned officer to recycle in MOS 88M.  His punishment consisted of a reduction to E-5 (suspended) and forfeiture of pay. He provided several letters in his defense pertaining to his mother's illness.  The Staff Judge Advocate (SJA) stated that the proceedings were conducted in accordance with law and regulation.  The punishment imposed was legally sufficient and permissible.

On 15 January 1999, orders were published releasing the applicant from duty as a personnel administrative sergeant (75H30) to perform the duties as a motor transport operator (88M40), effective 1 October 1998.  Orders indicated that the applicant was not duty MOS (DMOS) qualified and must be qualified within one year of effective date of reassignment in accordance with National Guard Regulation 600-200, paragraph 5-21.  

On 10 April 1999, the applicant was counseled by his recruiting and retention manager for failure to obey a lawful order issued by his battalion commander on 30 March 1999 to remain at the motor transport operator course (88M) and recycle.  The applicant stated that he took the test twice and failed.  Prior to the 
second examination, he was informed that his mother was ill.  He spoke with school officials and was informed to go home and that his commander would take care of the matter later.  He was asked to provide evidence of his mother's condition that precluded him from recycling.  Documentation was provided and based on all evidence, he was recommended for nonjudicial punishment. 
On 11 April 1999, the applicant requested transfer to the 720th Transportation Company that was close to his home, which had a current E-6 supply sergeant vacancy.  He also indicated that he was MOS qualified in this field.  The Plans and Training Officer recommended that the applicant's request be held in abeyance until all pending administrative and nonjudicial actions were resolved. 

On 16 June 1999, the Headquarters, 93rd Troop Command, administrative officer prepared a memorandum, Subject:  Initiation of Process for REFRAD from AGR status.  He requested that the applicant be released from the AGR Program due to patterns of misconduct, inappropriate professional and personal conduct, and for moral or professional dereliction of duty.  He also based his request on the applicant's failure to meet MOS qualification standards, which is a mandatory separation without board action.

The applicant's records contain a copy of Department of Military Affairs Order Number 188-005, dated 7 July 1999.  This order released the applicant from his position as a motor transport operator (88M) and assigned him to the position of assistant operations NCO, effective 1 July 1999.

The applicant's records contain a copy of a DD Form 214, dated 24 November 1999, which shows that he was released from active duty under honorable conditions effective 24 November 1999, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

He was honorably discharged from the NMARNG on 5 December 1999, in the rank of SSG.  He was transferred to the USAR Control Group (Individual Ready Reserve). 

On 29 August 2000, orders were published releasing the applicant from the USAR Control Group (Reinforcement) with an effective date of 29 August 2000 and assignment to an Army Reserve unit.

The applicant's records contain a copy of his Summary of Retirement Points, which shows he had completed 26 years of qualifying service for retirement purposes.

The applicant provided an affidavit from his former commander.  He stated that the applicant was given an Article 15 by his battalion commander for returning home from the motor transport operators (88M) course due to the illness of his mother.  However, neither his battalion commander nor the recruiting and retention commander ever consulted him with regards to his proposed discipline. He spoke at the applicant's hearing and stated that it was not fair that the applicant was given an Article 15 due to his return from the course and believed that the Article 15 was without merit.  As a result, he was suspended in rank, by the troop commander, and was delegated the responsibility for the applicant's performance.  He later discovered that the battalion commander had given the applicant notice that he was going to be separated from the AGR Program and his former commander was never consulted regarding his removal.  He had no complaints regarding the applicant's performance as an operations NCO.  However, he disagreed with the removal.  He understood that the removal was partly due to the applicant's not being MOS qualified for his position as a motor transport operator (88M).  There were several other soldiers in the Guard who had not become MOS qualified during the course of a year and were not removed from the AGR Program.  

The applicant provided an affidavit from his former supervisor.  He stated that the applicant was the top recruiter in the state and received many accolades for his performance while assigned as the production recruiter.  He also stated that the applicant had the ability to perform full time support duties in the ARNGUS in an exemplary manner and had the potential for further service if allowed to return to AGR status as a production recruiter. 

The applicant provided an affidavit from his former Recruiting-Retention Sergeant Major (SGM).  He stated that he was the applicant's immediate supervisor while the applicant was assigned as a production recruiter.  Under his command, the applicant was an exemplary soldier and was the top recruiter in New Mexico for almost 5 years.  He was extremely hardworking and consistently exceeded his recruiting mission requirements.  He received an Article 15 for an alleged false voucher; however, he felt that a letter of reprimand (LOR) was sufficient punishment.  He also felt that that the applicant was treated unfairly in the issuance of his second Article 15 since other soldiers in the same circumstances were treated less harshly.  The applicant has performed his fulltime support duties in the ARNGUS in an exemplary manner in the past and has the potential for further exemplary service if allowed to return to AGR status as a production recruiter.  

National Guard Regulation 600-5 sets forth the basic authority for the Active Guard/Reserve (AGR) Program.  Chapter 3 governs career management and utilization.  Paragraph 3-4 pertains to assignment.  It states that AGR soldiers will be qualified for their assigned modified table of organization and equipment (MTOE) or table of distribution and allowances (TDA) position.  Adjutants General may conditionally assign soldiers to other positions provided such soldiers have potential to become qualified within 12 months of assignment. A plan, specifying how and in what time frame the soldier will become qualified, will be prepared by the soldier's commander, administrative officer, and full-time supervisor.  Soldiers who do not qualify within 12 months will be reassigned to positions for which they are qualified or separated from the AGR Program.  Soldiers will not be reassigned to other positions for which they are not qualified. 

Chapter 5 governs personnel management.  Section IV pertains to personnel utilization. Paragraph 5-21 states that the objective of regulating proper utilization of personnel are to:  1) Ensure efficient utilization of soldiers; 2) Place soldiers in duty positions with required skills, knowledge, behaviors and abilities as indicated by the description for their MOS; 3) Provide policy that will strengthen and broaden MOS qualifications and prepare soldiers for career progress, increasing responsibilities, and diverse assignments as much as possible; 4) and assign soldiers to higher graded positions and promote them using the procedures outlined in this chapter.  

Chapter 6 governs the separation of soldiers serving on Full-Time National Guard Duty (FTNGD) in the AGR Program.  It states in pertinent part, that AGR soldiers will be separated without board action for failure to meet MOS qualification standards regardless of their current period of active duty.  Soldiers will be given at least 30 days notice of separation and will not be separated until final approval by the Adjutant General.

Subparagraph 6-5c pertains to reasons for involuntary separation that include inappropriate professional and personal conduct and moral or professional dereliction.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 

Paragraph 13-4 states that before initiating separation action against a soldier, commanders will ensure that the soldier has received adequate counseling and rehabilitation.  Because military service is a calling different from any civilian occupation, a soldier should not be separated when unsatisfactory performance is the sole reason for separation unless there have been efforts at rehabilitation.  Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted soldiers.  Chapter 8, paragraph 27(r) provides for the separation of incompatible occupation (employment conflict).
Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.

Chapter 7 of Army Regulation 135-178 establishes the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, patterns of misconduct, commission of a serious offense, and related charges.  

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.  The applicant entered the AGR status on 1 March 1990, was awarded the PMOS of 00E30, recruiter, reassigned as a production recruiter, and was promoted to the rank and pay grade of SFC/E-7.  He was the top recruiter of his state and received many accolades for his performance.  He was later released from duty as a production recruiter to perform the duties of strength maintenance NCO.   

2.  Orders were published on the applicant to perform the duties as motor transport operator (88M40), effective 1 October 1998.  Orders indicated that he was not DMOS qualified and must be qualified within one year of the effective date of reassignment. 

3.  The applicant attended the motor transport operators (88M) course, was tested twice and failed.  Prior to his second examination, he was notified that his mother was ill.  He spoke with school officials and was informed to go home and that the matter would be taken care of later.  He submitted two requests and was denied on both occasions.

4.  On 5 January 1999, the applicant received nonjudicial punishment for failure to meet MOS qualification standards.  The applicant provided evidence in his defense that precluded him from recycling.  Based on that evidence, he was recommended for nonjudicial punishment.  Punishment was imposed and reviewed by the SJA that found the punishment legally sufficient and permissible. 

5.  The battalion commander gave the applicant notification that he was being removed from the AGR Program based on his failure to meet MOS qualification standards.  The applicant was separated without board action in accordance with regulation.

6.  The applicant was released from active duty effective 24 November 1999, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He was honorably discharged from the NMARNG on 5 December 1999, in the rank of SSG and was transferred to the IRR.   

7.  After a review of the preponderance of evidence, the Board concludes that the applicant is not entitled to revocation of Orders Number 327-005, dated 23 November 1999, reinstatement to AGR status, or entitled to back pay and benefits lost due to his removal.  The evidence of record shows that the applicant was qualified in more than one MOS; however, his command chose to remove him from the AGR Program based on his failure to be MOS qualified in a specific MOS, 88M.

8.  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 this requirement.

9.  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

__rw___  ___mt___  ___mm___  DENY APPLICATION

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

INDEX

CASE ID	AR2002083342	
SUFFIX		
RECON		
DATE BOARDED	20030930	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19991205	
DISCHARGE AUTHORITY	ARNG REG 600-200, PARA 8-27r. 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	1023	
2.		
3.		
4.		
5.		
6.