IN THE CASE OF: BOARD DATE: 21 April 2021 DOCKET NUMBER: AR20210006135 APPLICANT REQUESTS: In effect, correction of his records to show he was honorably retired in lieu of being discharged for misconduct, with the issuance of a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * self-authored application, dated 15 September 2020 * letter from the California Army National Guard (CAARNG), dated 22 March 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He received a letter from the CAARNG on 22 March 2020, informing him that the CAARNG does not have the authority to grant his request. In other words, they are kicking the can down the road. After all the years of proving that the CAARNG made a mistake in his separation, they are refusing to acknowledge it and correct it. b. He has read and reviewed every Army Regulation and National Guard Regulation (NGR) that has been referenced by everyone. Some regulations were misquoted and guidelines were not followed for the justification of his separation in 1994. All this just for his 20 Year Letter. Not one agency is willing to admit that major mistakes were made during his discharge action. He followed all regulations and requirements after his first positive marijuana test. There was never a second positive test after completion of the drug rehabilitation program. He was discharged and separated under honorable conditions with just three drills or three months before his expiration term of service. c. He has seen others who have committed major acts of misconduct far worse than his, who have received a 20 Year Letter and are now receiving their retirement benefits. He has done everything within his control to get this matter handled within the military chain of command. Incompetent decisions and mistakes were made by people who did not understand the process or did not follow the regulations. He is paying for their mistakes without the retirement that he deserves. All he is seeking is fair and reasonable compensation for what he worked so hard for. 3. The applicant enlisted in the CAARNG on 24 July 1974. 4. The applicant continued his service through a series of reenlistments. He was promoted to the rank/grade of sergeant first class/E-7, effective 18 September 1992. 5. The applicant’s commander recommended his discharge on 1 May 1993, under the provisions of NGR 600-200 (Enlisted Personnel Management System), Chapter 7, with an honorable service characterization. 6. A memorandum from the Office of the Adjutant General, CAARNG, dated 10 November 1993, shows that based on the results of an administrative separation board on 30 September 1993, the applicant was recommended for separation due to misconduct – abuse of illegal drugs. It further states: a. The service member was found to have tested positive for an illegal substance on three separate occasions and had previously been recommended for separation by an administrative separation board in August 1991; however, the separation was suspended for a period of one year during which time he did not test positive for illegal substances. b. The service member now has over 18 years of qualifying service for retired pay. It is recommended that the findings and recommendations of the board be approved and that the service member be immediately discharged. 7. The Acting Chief, National Guard Bureau (NGB) approved the recommended discharge action on 9 March 1994, under the provisions of NGR 600-200, paragraph 8-26q, and as a Reserve of the Army under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), with the issuance of an honorable service characterization. 8. The applicant was discharged from the ARNG on 2 April 1994. The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he was discharged under the provisions of NGR 600-200, paragraph 8-26q, by reason of acts or patterns of misconduct. Additionally, it shows he was credited with completing 19 years, eight months, and nine days of net service this period. His service was characterized as honorable. 9. The applicant's record is void of an ARNG Annual Statement of Retirement Points that shows the number of qualifying years he was credited with for non-regular retirement. However, his record shows he was not credited with 20 qualifying years for non-regular retirement, which is a requirement for the issuance of a 20-year letter. 10. The applicant provides a letter from the Headquarters, CAARNG, dated 22 March 2020, which directs him to the ABCMR for consideration of his request. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, Office of the Adjutant General, CAARNG recommendation and evidence in the records. The Board considered the applicant’s statement, his military service record, documents provided by the applicant, the frequency and nature of his misconduct, the reason for his separation. The Board found that the discharge characterization for the misconduct was appropriate for the circumstances. The Board concurred with the Office of the Adjutant General, CAARNG and the Acting Chief, National Guard Bureau (NGB) recommendations. Based on the preponderance of evidence the Board determined there was no error or injustice. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG of the United States and the U.S. Army Reserve. Chapter 7 establishes policy and prescribes procedures for separating enlisted members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. NGR 600-200 provides for the management of ARNG enlisted personnel. Chapter 8 of this regulation sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG. It states, in pertinent part, that the separation of a Soldier from the ARNG is a function of State military authorities in accordance with State laws and regulations. a. Paragraph 8-2 (Authority) of the version in effect at the time provided that the Chief, NGB is the approval authority for the involuntary discharge of ARNG Soldiers who have completed 18 but less than 20 years of service qualifying for retired pay at age 60. b. Paragraph 8-26q provided for the separation of enlisted Soldiers for acts or patterns of misconduct. An administrative discharge board was required (unless waived by the Soldier) when the Soldier had six or more years of total military service or the separation authority considered discharge under other than honorable conditions was appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006135 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006135 5 ABCMR Record of Proceedings (cont) AR20210006135 4