IN THE CASE OF: BOARD DATE: 8 November 2012 DOCKET NUMBER: AR20110019972 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, in effect, reinstatement in the Active Guard Reserve (AGR) program with the Georgia Army National Guard (GAARNG). 2. The applicant states: a. On 10 December 2010, he was terminated from the AGR program for what he was told as making a false official statement and committing fraud. The decision that destroyed his career was based on a false and misleading Army Regulation 15-6 (Investigating Officers and Board of Officers) investigation. The investigator relied on false statements. This, coupled with an email from Colonel (COL) TMC, the GAARNG J-1, describing him as a "dirt-bag," resulted in a prejudicial feeling being formed about him during the investigation. b. The way things were explained to him was that the unit would rent out the armory from time to time to various groups. Among those groups was T.C. Wrestling, a small company that brought in wrestlers for public entertainment approximately 8 times a year. The armory had an agreement with a company called T.C. Wrestling that this company would rent the armory for $150.00 and also pay an additional $50.00 to a Soldier who volunteered to stay at the armory during the event and securing it upon conclusion of the event. The $150.00 was paid directly to the armory and the $50.00 was paid directly to the Soldier. During training meetings, his commander and first sergeant explained that the money would go to needy Soldiers, unit events and functions, or other items needed by the armory. c. The allegations made by Captain (CPT) RM, who was the commander of A Troop, 3rd Squadron, 108th Cavalry, states that he (the applicant) was the only one who knew about the rentals that were occurring in the armory and that he was the only one who knew cash was being collected for the wrestling events that were occurring at the armory, and that he (the applicant) told CPT RM how the funds were being collected. The truth is that the B Troop chain of command which was in charge of the armory was aware of any and all rentals as well as the cash being collected. Contracts were being filled out and all checks were sent to the Atlanta finance office for deposit. d. The investigating officer (IO) was inconsistent in that the Readiness Noncommissioned Officer (NCO) of A Troop (Sergeant First Class (SFC) JO) was paid over $1,400.00 in cash; yet, the IO never asked him what he did with the money he collected. The IO also stated there was $420.00 that he (the applicant) had turned over to Staff Sergeant ID, the A Troop Readiness NCO, was reported stolen; yet, he never investigated where the money went. e. When he was assigned the additional duty of Army Funds NCO, he took over from SFC JO. He handled the funds account the same way SFC JO and other NCOs prior to him did. He kept a rental agreement for every planned event, a ledger, and copies of the deposits made to the finance officer. He acted in accordance with the guidance given to him by SFC C. He was the only one investigated for mishandling armory funds. 3. The applicant provides: * Email from COL TMC, GAARNG J-1 * IO appointment memorandum * AR 15-6 Investigation Findings and Recommendation * Legal Review of the AR 15-6 * Notification of separation from the AGR program memorandum and chain of command recommendation * DA Form 2166-8 (NCO Evaluation report) for 200511-200605, 20060601-20061031, “20061201”-20071130, “20071101”-20080831, “20081101”-20090513, “20090515”-20100514 * Response to the AR 15-6 from a military attorney * Multiple DA Forms 2823 (Sworn Statement) by various key individuals * Multiple Rental Agreements for GAARNG Armory * Hand-written entries in a composition book * GAARNG Form 0221-R (Armory Fund Income/Expense Register) * Two character reference letters * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. After having had prior service, the applicant enlisted in the GAARNG on 13 December 2001. He was promoted to sergeant/E-5 on 29 April 2003. He was promoted to staff sergeant (SSG)/E-6 on 28 June 2006. 2. On 7 December 2006, he executed a 2-year extension of his ARNG enlistment and on 12 December 2006, he accepted a reduction in grade from SSG/E-6 to SGT/E-5 for the purpose of entry into Full Time National Guard Duty (FTNGD)/AGR program. 3. On 12 December 2006, the GAARNG published Orders 346-021 ordering the applicant to FTNGD in an AGR status for an active duty commitment from 13 December 2006 to 12 December 2009 in accordance with section 502(f), Title 32, U.S. Code. He was assigned as a Training NCO for Detachment 1, 1st Battalion, 108th Armor, Douglasville, GA. It appears he replaced SFC RC who was retiring. His immediate supervisor was SFC JO, the Readiness NCO. 4. In November 2007, he was assigned to Troop B, 3rd Squadron, 108th Cavalry Regiment, GAARNG, as a scout section leader with the additional duties of Troop Readiness NCO and on 29 March 2008, he was awarded MOS 19D (Cavalry Scout). 5. On 10 July 2008, he was reassigned to B Troop, 3rd Squadron, 108th Cavalry, Douglasville, GA, as the Operations NCO. He completed Phase I of the Basic NCO Course from 14 to 29 July 2008. 6. In November 2008, he received an annual NCOER covering the rating period 1 November 2007 through 31 October 2008 for his duties as a Scout Section Leader with B Troop, 3rd Squadron, 108th Cavalry, Douglasville, GA. 7. On 14 May 2009, he was reassigned from Troop B, 3rd Squadron, 108th Cavalry, to the Joint Force Headquarters, GAARNG. He was assigned as a Human Resources Specialist. Additionally, on 17 June 2009, he executed a 3-year extension of his ARNG enlistment contract. 8. On 17 April 2009, he attended and successfully completed the 80-hour Readiness NCO Course conducted at the National Guard Professional Education Center, Camp Robinson, North Little Rock, AR. 9. During the month of May 2009, he received an NCOER for his duties as a scout section leader that covered 6 months of rated time from 1 November 2008 through 13 May 2009. This NCOER shows in: * Part IVa the rater checked the "No" blocks for "Respect/EO/EEO" and "Integrity" and entered the comments – * Soldier was counseled by the Squadron Commander for unauthorized wear of special skill identification badge * Soldier was counseled multiple times for disrespect to Commissioned Officers and Senior Noncommissioned Officers * Part IVc (Values/NCO Responsibilities – Physical Fitness and Military Bearing) the rater checked the "Needs Improvement (Some)" block and entered the comments – * Soldier does not meet Height/Weight standards * Soldier has maintained a profile for the length of the rating period * Soldier does not conduct Physical Training with the troop * Part IVd (Values/NCO Responsibilities – Leadership) the rater checked the "Needs Improvement (Some)" block and entered the comments – * Soldier was counseled by Troop First Sergeant for disrespect to a Commissioned Officer and a Senior Noncommissioned Officer * Does not use/inform chain of command on a consistent basis on decisions affecting the Troop * Continuously places self over the welfare/best interest of the Troop * Part IVf (Values/NCO Responsibilities – Responsibility and Accountability) the rater checked the "Needs Improvement (Some)" block and entered the comments – * Brought in all new vehicles and equipment from Fort Stewart and assists in maintenance and tracking (15 vehicles with radios) * Did not maintain accountability over the armory funds which led to a 15-6 investigation * Exercised responsibility for maintenance and accountability of facilities and equipment * Part Va (Overall Performance and Potential – Rater) the rater checked the "Marginal" block and entered three positions in which the applicant could best serve the Army at his current or next higher grade * Part Vc (Overall Performance and Potential – Senior Rater – Overall Performance) and in Part V(d) (Overall Performance and Potential – Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) the senior rater checked the "Fair (4)" block * Part Vd (Senior Rater – Overall Potential), the senior rater checked the "Superior (3)" block 10. The contested NCOER was signed by the applicant's rating officials on 3 and 4 February 2010 but the applicant did not sign it. Additionally, there is no indication he appealed the contested NCOER to the Enlisted Special Review Board. 11. On 22 July 2009, the GAARNG Chief of Staff appointed Major (MAJ) BGG, a member of the 78th Troop Command, as an IO to conduct an informal investigation into the applicant's alleged misconduct. Primarily: * Making false official statements * Committing fraud against the Government * Violating general provisions of disorder and neglect to the prejudice of good order and discipline 12. On 13 December 2009, the GAARNG published Orders 260-711 ordering the applicant to FTNGD in an AGR status for an active duty commitment for a period of 6 years, from 13 December 2009 to 12 December 2015. The authority is listed as section 502(f), Title 32, U.S. Code. He was assigned to the Joint Force Headquarters, GAARNG, in MOS 42A (Human Resources Specialist). 13. On 28 January 2010, the IO submitted his findings and recommendations. He stated: a. Background: On 30 September 2009, CPT RM, commander of B Troop, stated he was not aware that the applicant was renting the armory (wrestling championship) until June 2009. After querying, the CPT determined the applicant was the only one who knew of the scheduling and that he was not in compliance with the regulation. Armory rentals were not under contract and cash was being collected for the rentals. The CPT ordered the applicant to turn in all monies and receipts. Items recovered included $420.00 in cash, a composition book, and personal check from the applicant for $200.00. The applicant was unable to produce a list of hosted events and could not show the money was deposited to finance in the past 18 months. b. Issues: the applicant was not following Army Funds policies. The applicant was not trained prior to assuming the duties of Armory Funds Manager. He kept no clear records that any funds were collected and there were no official contracts with any vendors. Additionally, although he stated he had deposited the money with the finance office and despite having had 18 events scheduled, there was no documentation of deposits in the past 18 months. c. Findings: based on the preponderance of the evidence, the applicant committed misconduct and misappropriated U.S. Government armory funds. d. Recommendation: repayment of Armory funds in the amount of $200.00 per event based on 18 months rental period totaling $3,000.00 and the applicant's release from his current duties and discharge from the ARNG. 14. On 15 April 2010, a GAARNG Staff Judge Advocate (SJA) reviewed the AR 15-6 and found it legally sufficient. The IO's findings were supported by sufficient evidence and may be adopted by the approval authority. 15. On 23 June 2010, by memorandum, the GAARNG G-1 notified the applicant of his intent to initiate separation action against him under the provisions of chapter 6, AR 600-5 (The AGR Program - Title 32 FTNGD) for cause. He stated that an AR 15-6 investigation revealed clear and compelling evidence of misconduct. Both the IO and the SJA concluded the applicant made false official statements and committed fraud. 16. On 15 July 2010, by memorandum to The Adjutant General, a military attorney, assigned to represent the applicant in connection with the AR 15-6, advocated the applicant's retention in the AGR position. He stated: * The applicant was placed in the position with no formal training * Renting the armory was common knowledge throughout his chain of command * Contracts were actually being executed * CPT RM's allegations were based on hearsay; the applicant never made a false official statement * CPT RM was not in the applicant's chain of command * The applicant knew he should not have collected cash but he did as he was told by the previous NCO; plus all the cash was accounted for * The applicant used the cash to help other Soldier(s) in need and the chain of command knew where the money went * The applicant used his own money to cover any shortfall 17. On 27 and 28 September 2010, the GAARNG JAG, Human Resources Office, and Chief of Staff concurred with the request for separation. Furthermore, consistent with the chain of command's recommendations, The Adjutant General approved the request for separation. 18. On 25 March 2011, the GAARNG published Orders 084-789 ordering his release from the AGR (FTNGD status), effective 9 March 2011, thus terminating Orders 260-711, dated 13 December 2009 (the ones that ordered him to FTNGD in an AGR status for an active duty commitment for a period of 6 years, from 13 December 2009 to 12 December 2015). 19. His DD Form 214 shows he was honorably released from active duty on 9 March 2011 for miscellaneous/general reasons in accordance with NGR 600-5, chapter 6. He completed 4 years, 2 months, and 27 days of creditable active service. 20. In June 2011, he received an annual NCOER covering the rating period 1 June 2010 through 31 May 2011 for his duties as a Human Resources Specialist with the Joint Force Headquarters, GAARNG. 21. He attended and successfully completed Phase I of the Human Resources Specialist Course from 7 to 21 January 2012 and Phase II from 21 January to 3 February 2012. 22. In June 2012, he received an annual NCOER covering the rating period 1 June 2011 through 31 May 2012 for his duties as a Human Resources Specialist with the Joint Force Headquarters, GAARNG. 23. On 3 October 2012, the GAARNG published Orders 277-054 ordering him to FTNGD for Operational Support from 1 November 2012 through 30 September 2013 for the purpose of health services mobilization support. 24. The applicant provides: a. Self-authored sworn statement, dated 10 July 2010, wherein he reasserts his position that he did not steal or misappropriate funds, all the funds were accounted for, and the situation was a result of a misunderstanding. b. Sworn statement, dated 12 July 2010, from SFC (Retired) RC, wherein he states that he was the Readiness NCO at the armory from 1990 to 2006 and he was in charge of the armory fund during that time. Although he too asked to be trained, no training was provided. It was explained to him too that the armory had a cash fund from various sources. He was approached by T.C. Wrestling in the mid-1990s to rent the armory for wrestling matches. When he retired in 2006, he passed on the fund functions to SFC JO who later passed it on to the applicant despite the lack of training by both NCOs. He opines the applicant did his job as he was told. c. Sworn statement, dated 4 March 2010, from SFC JO who states he was the Readiness NCO in May 2006 when the unit returned from mobilization. He was not involved in the unit fund functions but one of the NCOs explained to him and to the applicant how the process works. They rented the armory to different vendors including the circus and a tool sale. He believes the monies received were deposited. He was not aware the applicant was collecting cash for the functions and he instructed him to collect money orders instead. In any case, he was not closely involved with the armory fund collection but during the time, he never suspected the applicant of stealing any monies. d. A second sworn statement, dated 14 July 2010, from SFC JO wherein he states that to his knowledge, the applicant never made a false official statement regarding the armory funds or committed any fraud. e. A sworn statement, dated 14 July 2010, from the owner of T.C. Wrestling who gives a historical background of his company's relationship with the armory. He adds that between 2008 and 2009, a total of 9 shows were performed and that he paid the applicant in cash. He then noticed a change in attitude toward his company and was informally told the new armory people wanted him gone. He then learned of the investigation. He believes the applicant is an honest man and that he (the author) was pressured into writing a statement against the applicant but he refused. f. Sworn statement, dated 13 July 2010, from First Lieutenant AM, the platoon leader, Troop B, 3rd Squadron, 108th Armor from January 2008 to January 2009. He states he was aware the armory was being rented and that funds were being collected for the rental. The money from the fund was used by NCOs and officers in the chain of command to buy armory-related items. He personally knows the applicant to be honest with a high degree of ethics and integrity. He kept meticulous records and accurately tracked all funds. He opines that it is unfair to single him out and punish him for handling the armory funds in accordance with the way he was taught and with approval from the chain of command. g. A sworn statement, dated 11 July 2010, from sergeant MJM, the supply sergeant for A and B Troops, 3rd Squadron, 108th Armor, from July 2007 to July 2009. He attended several training meetings in the presence of the company commander, company first sergeant, platoon leaders and sergeant, and the applicant. The armory fund issue came up several times and it was referred to as a "flower cup" or "NCO fund.” The applicant had a big white board displayed in his office with unit functions, including the rentals. It was common knowledge. h. Statement, dated 12 July 2010, from Mr. AB, an accounting director, regarding Armory Fund Management Training. He states the applicant had no formal training with unit funds. A web site was built to cater to the needs of the armory fund manager community. The web site contains forms, bulletins, regulations, and other relevant information. i. Multiple rental agreements, signed on various dates between 2008 and 2009, between the applicant and an official at T.C. Wrestling, to rent the armory for $150.00 to be paid in money orders or check - no cash. j. Hand-written entries in a composition book, related to miscellaneous expenses including gas, parts, diesel fuel, food expenses, and other vehicle parts and maintenance expenses. k. Multiple GAARNG Forms 0221-R, dated on various dates between 2008 and 2009, documenting income received and expenses paid in relation to the armory fund. l. Two character reference letters, dated in 2010, confirming the applicant's high level of integrity and professionalism. 25. An advisory opinion was obtained on 11 October 2012 from the National Guard Bureau (NGB) in the processing of this case. An NGB official recommended approval and stated the information depicts the applicant was following guidelines as taught, his chain of command was aware, and he was properly tracking expenditures. The official added: a. The applicant was removed from the AGR program after an unjustly-done AR 15-6 investigation. The IO found the applicant committed misconduct and misappropriation of U.S. Government Armory funds per the GAARNG memorandum, dated 28 January 2010. b. The applicant's rebuttal together with the rebuttal from his counsel and the sworn statements reveal the applicant was following the standards of the Armory Fund Manager Program process he had been taught by the NCO in charge he replaced. Sworn statements written to support his actions and character maintain that he requested formal training but none was available. Sworn statements from prior Armory Fund Managers relate that they operated the same as the applicant, having been taught by their predecessors. The applicant was directed to a website under development to glean the rules and regulations that governed the Armory Fund Manager Program. c. As noted on the enclosed composition notebook, the applicant listed and tracked Armory Rental transactions, accounted for monies received, loaned and spent on armory and unit equipment upkeep. The applicant loaned Soldiers money out of the fund, was informed that loaning money to Soldiers was not proper use of the funds, and then submitted a personal check to cover the amount. Copies of the rental contracts for use of the armory are enclosed with his application. d. Sworn statements from Soldiers in units that shared the armory support him in that his chain of command was aware of the scheduled events for the armory. The commander who made the accusations was in command of another unit in the armory. The statements also depict the applicant's own chain of command was aware and informed of his actions and that armory rental events were posted in the armory and monies collected were discussed during training meetings. e. The state concurs with this recommendation. 26. On 23 October 2012, the applicant responded to the advisory opinion. He restated his position that he kept very good records, kept his chain of command informed, and had always striven to be the best NCO he could be. He feels he should be reinstated into his AGR position and be allowed to complete his tour and retire. 27. NGR 600-5 prescribes policies and procedures for managing ARNG Soldiers in the AGR program who serve on FTNGD under the provisions of section 502(f) of Title 32, U.S. Code. Chapter 6 provides for separation as it relates to release from FTNGD. The State Adjutant General will be the final separation authority. AGR Soldiers will be separated without board action for reasons stated below in paragraph 6-4 regardless of the expiration dates of their current periods of duty. Separation for cause procedures need not be used. Soldiers will be given at least 30 days of notice of separation. 28. Paragraph 6-5 provides for separation for cause. AGR Soldiers will be involuntarily separated for cause from FTNGD in accordance with this paragraph. Adjutant Generals would review all recommendations for separation under this paragraph and will make the final determination. This authority will not be delegated. Reasons for involuntary separation under this paragraph include inappropriate professional and personal conduct, moral or professional dereliction, loss of professional qualification, substandard duty performance, acts of expressed sentiments of racism, sexism, or prejudice against ethnic or religious groups, or failure to attain and maintain medical, physical fitness, and weight standards. DISCUSSION AND CONCLUSIONS: 1. An IO conducted an informal investigation into allegations that the applicant did not follow Army fund policies and procedures. After completing his investigation, the IO believed that based on the preponderance of the evidence, the applicant committed misconduct and misappropriation of armory funds. a. The IO noted that the applicant was not properly or formally trained to handle funds. He also noted that there was no documentation of deposits for the past 18 months and that payments were made partially in cash and checks. However, it was unclear whom the checks were made to. b. The IO also noted that the applicant's actions showed a disregard for the proper use of armory funds and that due to the lack of documentation, the exact amount of money exchanged between the applicant, vendors, and unit personnel could not be verified. The applicant essentially collected unauthorized cash, routinely paid for facility upkeep with misappropriated funds, and loaned money to fellow Soldiers. c. The IO recommended repayment of the funds, the applicant's release from his duties, and discharge from the GAARNG. 2. An SJA reviewed the informal investigation and found it legally sufficient. The proceedings complied with legal requirements - with some procedural harmless errors that did not affect the applicant's rights - and that the recommendations were consistent with the findings. 3. As required by the regulation governing ARNG enlisted Soldiers on FTNGD AGR duty, the chain of command initiated separation action against him. In response, the applicant submitted a rebuttal by his counsel as well as various sworn statements and character reference letters in an effort to prove he was simply performing the same duties he was told or trained to do by his predecessors. 4. The chain of command considered the statements and made the recommendations to separate him. The Adjutant General approved the separation action. When this process began and while it was in motion, the applicant was reassigned to the Joint Force Headquarters as a Human Resources Specialist. The orders, dated 12 December 2006, that placed him in the FTNGD/AGR status from 13 December 2006 to 12 December 2009 were neither revoked nor rescinded. In other words, he remained in the AGR program. 5. In December 2009, as his original 3-year AGR tour came to an end, the GAARNG published official orders ordering him to FTNGD in an AGR status for a period of 6 years, from 13 December 2009 to 12 December 2015. It wasn’t until March 2011 that he was removed from the state AGR program. 6. The advisory opinion recommended that the Board excuse the applicant’s violation of the applicable regulations because he acted in conformance with past practice, his chain of command was aware of his activities, he kept records and he had some form of financial controls in place. However, accepting this rationale to excuse blatant regulatory violations is inappropriate. At a minimum, payments for rental agreements were to be made by certified check or money order and paid to an official fund. 7. The AGR position is not an entitlement. AGR positions are filled as needed to meet mission requirements. Here, a legally sufficient investigation led to the applicant’s removal. Therefore, notwithstanding the NGB's advisory opinion, since the IO clearly demonstrated the applicant committed misconduct and since there is insufficient evidence that he was improperly removed from this program, there is no reason to reinstate him. 8. AGR positions are continuously advertised based on needs. The applicant has the option to reapply for an AGR position at the State. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X___ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ 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. ABCMR Record of Proceedings (cont) AR20110019972 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110019972 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1