BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20160002266 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20160002266 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Parachutist Badge to his DD Form 214. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: a. Showing on his NGB Form 22: * His characterization of service as honorable * His rank as sergeant, pay grade E-5 b. Restoring any loss of promotion, pay, or allowances resulting from errors made concerning his mental health referral. c. Restoring his authorization to transfer his Post 9-11 GI Bill benefits to his daughter. d. Authorizing him retirement benefits based on his 14 years of Army National Guard (ARNG) service. ____________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. BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20160002266 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 correction of his military records by: a. Showing on his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service): * His characterization of service as honorable * His rank as sergeant, pay grade E-5 b. Restoring any loss of promotion, pay, or allowances resulting from errors made concerning his mental health referral. c. Restoring his authorization to transfer his Post 9-11 GI Bill benefits to his daughter. d. Adding his Parachutist Badge to his DD Form 214 (Certificate of Release or Discharge from Active Duty). e. Authorizing him retirement benefits based on his 14 years of Army National Guard (ARNG) service. 2. The applicant states the Department of Defense Inspector General (DODIG) and the Department of the Army Inspector General (DAIG) substantiated his whistleblower claim and determined that he received a retaliatory personnel action as a result of making a protected communication. As a result he is making this request to the Board. 3. The applicant provides copies of: * Orders 334-3011,Fort Benning, Georgia, dated 30 November 2005 * Permanent Orders 342-2898. Fort Benning, Georgia, dated 8 December 2005 * Orders 230-909, State of Michigan, dated 18 August 2011 * Orders 334-500, Camp Shelby Joint Forces Training Center, dated 29 November 2011 * Orders A-12-127151, U.S. Army Human Resources Command (HRC), dated 7 December 2011 * Orders 349-0907, Fort Gordon, Georgia, dated 15 December 2011 * DD Form 214 ending on 30 December 2011 with DD Form 214C (Continuation Sheet) attached * NGB Form 22 effective 1 December 2012 * Letter from DAIG, Assistance Division, to the applicant, dated 1 October 2015 * Letter from DAIG, Records Release Office, to the applicant, dated 1 October 2015, with 55 page report attached CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Michigan ARNG (MIARNG) on 3 April 2001. 3. Permanent Orders 342-2898, Fort Benning, dated 8 December 2005, announced the applicant’s successful completion of airborne training and his corresponding award of the Parachutist Badge. 4. Records show the applicant was promoted to sergeant, pay grade E-5 with a date of rank of 11June 2011. 5. Orders 230-909, State of Michigan, dated 18 August 2011, ordered the applicant to active duty as a member of his Reserve Component unit in support of Operation Enduring Freedom with report dates in October 2011, for a period not to exceed 400 days. 6. Orders 334-500, Camp Shelby Joint Forces Training Center, dated 29 November 2011, directed the applicant to report to the Medical Retention Center, Fort Gordon, Georgia, for medical evaluation/treatment, with a report date of 1 December 2011. 7. On 30 December 2011, the applicant was released from active duty (REFRAD) and transferred to his MIARNG unit. He had completed 2 months and 15 days of net active service during this period. His DD Form 214 shows he was REFRAD with an honorable characterization of service in the rank of sergeant, pay grade E-5. His Parachutist Badge is not shown on this form. 8. On 17 April 2012, a Letter of Instructions (LOI) – Unexcused Absence, was mailed to the applicant advising him of his failure to attend scheduled unit training assemblies (UTA) or multiple unit training assemblies (MUTA) on 13,14, and 15 April 2012. He had a total of 5 unexcused absences within a 1-year period. The letter explained what actions he needed to take concerning his absences and notified him of the next scheduled UTA/MUTA on 18 May 2012. The United States Postal Service (USPS) track and confirm report indicates that the LOI was delivered on 19 April 2012. A PS Form 3811 (Domestic Return Receipt) shows the applicant signed for the LOI. 9. On 25 September 2012, an LOI – Unexcused Absence, was mailed to the applicant advising him of his failure to attend scheduled UTA or MUTA on 3, 4, and 5 August 2012. He had a total of 8 unexcused absences within a 1-year period. The letter explained what actions he needed to take concerning his absences and he was notified of the next scheduled UTA/MUTA on 27 October 2012. The USPS track and confirm report indicates that the applicant refused the LOI on 29 September 2012. A PS Form 3811 shows the LOI was not delivered and was returned to the sender. 10. A memorandum to the applicant, dated 26 September 2012, notified him of the commander’s intention to separate him from the MIARNG and as a Reserve of the Army for unsatisfactory participation. The reason for this action was the applicant’s unexcused absences from twelve MUTA drilling periods within one calendar year. The commander stated he was recommending the applicant receive an under other than honorable conditions discharge with reduction to private, pay grade E-1. The applicant was advised of his rights: * to consult with appointed military legal counsel; military counsel of his choice if reasonably available, or civilian counsel at his own expense * to obtain copies of documents that will be sent to the separation authority * to request a hearing before an administrative board * to have representation at the administrative board * to present written statements on his own behalf in lieu of an administrative board * to submit a conditional waiver of his right to an administrative board proceeding 12. The memorandum discussed in the preceding paragraph contained an attached memorandum for the applicant to complete, wherein he could acknowledge receipt of this action and exercise his rights as listed above. He had a 30-day period to complete the memorandum, which was to be signed by him and his counsel. Also included were memoranda for the applicant to request a conditional waiver if he so chose and to provide his response to the Sexual Assault Prevention and Response Program. There is no indication whether the applicant ever received any of these memoranda, or if he did, whether he completed them. 13. In a memorandum, dated 3 October 2012, the applicant’s commander recommended his discharge under the provisions of National Guard Regulation NGR 600-200 (Enlisted Personnel Management), AR 135-178 (Separation of Enlisted Personnel) and AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures). The recommendation was based on the applicant’s unsatisfactory participation as discussed in the previous paragraphs. 14. On 9 October 2012, the applicant’s battalion commander recommended his discharge from the MIARNG and as a Reserve of the Army. He submitted his recommendation through the brigade commander to the Adjutant General for the State of Michigan. 15. Orders 340-035, State of Michigan, dated 5 December 2012 announced the applicant’s discharge from the MIARNG and as a Reserve of the Army effective 1 December 2012, in the rank of private, pay grade E-1, under the provisions of NGR 600-200, paragraph 35j, with an under other than honorable conditions (UOTHC) characterization of service. 16. An NGB Form 22 reports that the applicant was separated from the MIARNG and as a Reserve of the Army effective 1 December 2012 under the provisions of NGR 600-200, paragraph 32j due to unsatisfactory performance. His characterization of service is shown as UOTHC. His rank was shown as specialist, pay grade E-4. 17. Orders 340-036, State of Michigan, dated 5 December 2012 announced the applicant’s reduction in rank from sergeant, pay grade E-5, to private, pay grade E-1, effective 1 December 2012. The reason for the reduction was misconduct. 18. An NGB Form 22A (Correction to NGB Form 22) dated 10 December 2014, corrected the applicant’s rank, pay grade and date of rank to read as private, E-1, 1 December 2012. 19. In a memorandum for the DODIG, subject: Report Investigation: Reprisal, copy undated, the DAIG stated: a. Based on the preponderance of the evidence collected, the DAIG agreed with the MIARNG that the two mental health evaluations were procedurally incorrect and a counseling statement administered to the applicant would restrict his procedural right to an IG. b. Additionally, the MIARNG IG addressed two follow-on personnel actions not presented by the applicant in either his original complaint or in his interview. The applicant was released from a pending deployment at his request. He returned to his unit and reverted to a troop program unit (TPU) status. Subsequently, he elected to absent himself from his place of duty for a drill weekend in April 2012 and the unit initiated non-judicial punishment (NJP). The applicant eventually turned down the NJP and requested a trial by court-martial. Shortly thereafter the applicant ceased to attend drill at all and was separated from the unit. The applicant was interviewed after he was separated and did not include these actions in his complaint when offered an opportunity to do so. Therefore, they were not addressed as allegations. The MIARNG IG did discuss and analyze these actions in the report and the DAIG made a record of them to document the circumstances. 20. In a letter to the applicant, dated 1 October 2015, the DAIG provided a final response concerning their investigation of his reprisal allegation. The 55 page Report of Investigation (ROI) conducted under Title 10, U.S. Code, section 1034, Military Whistleblower Protection Act, was attached. The DAIG substantiated the applicant’s allegations: a. that his company commander improperly referred him for a mental health evaluation (procedural violation) in violation of DODD 6490.1, Mental Health Evaluations of Members of the Armed Forces; b. that his rear detachment commander improperly referred him for a mental health evaluation (procedural violation) in violation of DODD 6490.1, Mental Health Evaluations of Members of the Armed Forces; and c. that his platoon leader improperly restricted him from communicating with an IG in violation of DODD 7050.06, Military Whistleblower Protection. 21. The DAIG letter further stated that the findings regarding his allegations of an improper mental health evaluation referral indicate that the referrals were procedurally incorrect; however, the underlying reasons for the referrals were not reprisal and the results of the evaluation were valid. Additionally, the DAIG found that his removal from his position, initiation of non-judicial punishment, and an involuntary separation were appropriate based on his performance and conduct and were not taken in reprisal for making a protected communication. 22. In the processing of this case, an advisory opinion was obtained from the National Guard Bureau. It states: a. On 1 December 2012, under the authority of NGR 600-200, 6-35j, the applicant was involuntarily discharged from the MIARNG for unsatisfactory participation. The existing NGB Form 22 is based on proper procedural processing of willful continuous absence from duty in accordance with (IAW) AR 135-178. The applicant refused to accept documentation which specified and afforded him rights under the aforementioned separation proceedings. b. The applicant received a release from active duty from Fort Gordon effective 30 December 2011. During this period, he was returned to Title 32 status and did not deploy with his unit. c. IAW ARNG Post 9-11 GI Bill guidance, a service member who is flagged for adverse action due to accruing 9 or more absences in a 1-year period is not eligible to transfer his Post 9-11 GI Bill benefits to dependents. Additionally, Title 38 USC 12685 (2) and DODI 1341.13 requires a service member to have 4 years of service remaining obligation to transfer benefits to dependents. d. Documentation within the applicant’s personnel file supports the award of the Parachutist Badge as of 8 December 2005. e. Recommendation: * Add the Parachutist Badge to the applicant’s DD Form 214 * Deny request for honorable discharge * Deny reinstatement of rank * Deny promotion or pay associated with release from active duty deployment, and five months of drill pay * Deny transfer of education benefits to his daughter f. Concur with the DAIG letter to the applicant, dated 1 October 2015, which found his removal from his position, initiation of NJP and involuntarily separation were appropriate based on his performance and conduct and not taken in reprisal for his protected communication. g. This advisory opinion was coordinated with the NGB Enlisted Policy Branch. h. The MIARNG concurs with this recommendation. 23. On 27 May 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures) provides guidance governing absences from Ready Reserve training for enlisted personnel of the ARNG. a. A Soldier becomes an unsatisfactory participant when he has accrued 9 or more unexcused absences from scheduled drills occurred during a 1-year period. b. After accruing four unexcused absences in a 1-year period the unit commander is required to notify the Soldier via a prescribed LOI – unexcused absence. The delivery of this notice was to be either in person, or by certified mail, restricted delivery, return receipt requested. After each additional unexcused absence in a 1 year period, the Solder is to receive a similar LOI. Each of these notices are to be filed in the Soldier’s military personnel records. 2. AR 135-178 provides in chapter 13 (Unsatisfactory Participation in the Ready Reserve) that a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: a. The Soldier is an unsatisfactory participant as prescribed by AR 135-91, chapter 4; and b. Attempts to have the Soldier respond or comply with orders or correspondence have resulted in— * The Soldier’s refusal to comply with orders or correspondence * A notice sent by certified mail was refused, unclaimed, or otherwise undeliverable * Verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed * Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities * Commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a Soldier who may have committed serious misconduct the harsher penalties that may be imposed under the UCMJ. c. Characterization of service normally will be UOTHC. 2. NGR 600-200 provides: a. Paragraph 6-8c (UOTHC): Service may but is not required to be characterized as UOTHC only when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security reasons, and is based upon a pattern of behavior The AG will direct reduction in grade to PV1 per AR 600-8-19, paragraph 10-15 when the Soldier is discharged with an UOTHC. b. Paragraph 6-35j: Refer to AR 135-178, chapter 13 for unsatisfactory participation. Commanders may recommend retention of Soldiers who have accrued 9 or more unexcused absences within a one-year period. Submit requests with justification for retention to the AG (MPMO/G1). Include verification that the notification requirements of AR 135-91 and paragraph 6-32 have been met. Soldiers must be notified by registered or certified mail the intent and projected discharge date. Retention approval authority can be delegated to the lieutenant colonel command level. 3 The Military Whistleblower Protection Act, Title 10 U.S.C. 1034, as amended, prohibits interference with a military member’s right to make protected communications to members of Congress; Inspectors General; members of Department of Defense (DOD) audit, inspection, investigation or law enforcement organizations; and other persons or organizations (including the chain of command) designated by regulation or administrative procedures.  A protected communication is any lawful communication to a Member of Congress or an IG, as well as any communication made to a person or organization designated under competent regulations to receive such communications, which a member of the Armed Services reasonably believes reports a violation of law or regulation (including sexual harassment, unlawful discrimination, mismanagement, a gross waste of funds or other resources, abuse of authority, or a substantial or specific danger to public health or safety). 4. DOD Directive 7050.6 updates the policy and responsibilities for military whistleblower protection under 10 U.S. Code, section 1034. It states, in pertinent part, that it is DOD policy that members of the Armed Forces shall be free to make a protected communication and/or free from reprisal for making or preparing to make a protected communication. It further states that no person may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing to make a protected communication. 5. A complaint must be filed within 60 days after the date on which the member becomes aware of the personnel action that is the subject of the allegation. Section 1034, Title 10 of U.S. Code, requires an expeditious investigation of all allegations of reprisal for whistleblowing submitted by military members. No investigation is required when a member or former member of the Armed Forces submits a complaint of reprisal to an authorized IG more than 60 days after the date that the member became aware of the personnel action that is the subject of the allegation. An authorized IG receiving a complaint of reprisal submitted more than 60 days after the member became aware of the personnel action at issue may, nevertheless, consider the complaint based on compelling reasons for the delay in submission or the strength of the evidence submitted. DISCUSSION: 1. The applicant requests correction of his military records by showing he was separated from the MIARNG as a sergeant, pay grade E-5 with an honorable characterization of service. He also wants restoration of any loss of pay and allowances resulting from errors made concerning his mental health referral, restoration of authorization to transfer his Post 9-11 GI Bill benefits to his daughter, addition of his Parachutist Badge to his DD Form 214, and authorization to receive retirement benefits based on his 14 years of ARNG service. 2. The available evidence shows that the applicant successfully completed the Basic Airborne Course at Fort Benning and was awarded the Parachutist Badge. However, his DD Form 214 does not show this badge. 3. The available evidence shows the applicant accrued 12 unexcused absences from scheduled drills. As a result NJP was initiated which he refused to accept and he requested a trial by court-martial. The available evidence fails to show specific actions taken by the commander in regard to his request for trial. The commander subsequently notified him that he was being administratively separated because of his unsatisfactory participation due to repeated unexcused absences. 4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 5. The circumstances surrounding the applicant’s contention that he suffered reprisal by his command due to his making a protected communication with the IG have been carefully reviewed. While the evidence shows that there were procedural errors concerning his referral for a mental health evaluation and a counseling statement that restricted his authorization to contact the IG, there is no evidence showing that he suffered any reprisal action. Furthermore, there is no evidence showing that his ultimate reduction and separation were in any way the result of reprisal. His pattern of misconduct by failing to attend scheduled drills led to his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002266 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002266 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2