IN THE CASE OF: BOARD DATE: 25 May 2022 DOCKET NUMBER: AR20210016987 APPLICANT REQUESTS: * Correction of his National Guard Bureau (NGB) Form 23A1 (Army National Guard Retirement Points Statement – Supplemental Detailed Report) to show his active-duty service, from 20 June to 15 July 2001 and 16 September to 12 October 2001 * Correction of his NGB Form 23A1 to, in effect, reflect his inactive duty service, from 13 October to 8 November 2001, with the Mississippi Army National Guard (MSARNG) * The Board direct the creation of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the respective active-duty periods of 20 June to 15 July 2001 and 16 September to 12 October 2001 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * NGB Form 23A1 (not available with application) * NGB Form 22 (Report of Separation and Record of Service) (not available with application) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, according to his NGB Form 23A1 and his memory, his basic active service started on 19 June 2001, but he is missing the entire months of June and October. a. The applicant maintains he was active from 20 June to 12 October 2001 and, while he sees most of his days, he is missing the time he spent at Fort Sill, OK (20 Jun to 15 July 2001) and Fort Bliss, TX (16 September to 12 October 2001). In addition, the report fails to reflect his inactive service with the 112th Military Police (MP) Battalion (13 October to 8 November 2001). b. The applicant became aware of the missing service when he tried to purchase a home; as of the date of his application, he was "in the process now with a deadline coming in a week," and he emphasized he really needed the changes to take place. 3. The applicant's service records show: a. On 20 July 2000, the applicant enlisted into the MSARNG for 8 years; he was 17 years old. b. Military Entrance Processing Station (MEPS) orders, dated 20 July 2000, ordered the applicant to initial active duty for training (IADT), with the consent of the Governor of. The order directed the applicant to report to Fort Sill, on 20 June 2001, and to Fort Bliss, on 4 September 2001; in addition, the order stated the applicant's term of active duty would be approximately 16 weeks in length. The applicant's available service records are void on any documentation showing he actually entered active duty on the dates listed in the order. c. During the June 2001 drill, the applicant's unit (112th MP Battalion) administered a random urinalysis test to the applicant and other unit personnel; on 2 December 2001, the applicant's company commander advised the applicant that his test had returned positive for marijuana and, as such, the commander was flagging the applicant's personnel records. The commander further informed the applicant, "You are to seek a clinical evaluation to determine your rehabilitation potential. The evaluation must be obtained from a community-based, State-Certified substance abuse treatment center of your choice and at your expense. I have provided you with a list of centers available in this area...failure to seek evaluation and rehabilitation will result in my recommendation for separation from the MS Army National Guard...You have until 15 January 2002 to provide the requested information." d. On 13 February 2002, the applicant's company commander notified him, via memorandum, of his intent to initiate separation action against the applicant, under the provisions of chapter 12 (Misconduct), paragraph 12-1d (Abuse of Illegal Drugs), Army Regulation (AR) 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations). The commander stated the reason for this action was the applicant's positive urinalysis results during the June 2001 drill, and he was recommending the applicant for a general discharge under honorable conditions, but the final decision rested with The Adjutant General, MSARNG. The commander's notification additionally stated he was suspending separation action for 45 days to give the applicant an opportunity to exercise his rights; the memorandum's suspense date was 15 March 2002 (31 days from the date of the memorandum). (1) The commander provided the applicant a blank memorandum, in which the applicant was to reflect his consultation with counsel and indicate his elections, as outlined in AR 135-178. (2) The applicant's available service record includes a certified mail receipt and a PS Form 3811 (Domestic Return Receipt), which indicates Ms signed for the commander's notification, on 14 February 2002. (3) The applicant service record is void of any documentation showing the results of a clinical evaluation of the applicant by a community-based, State-Certified substance abuse treatment center; in addition, his service record is missing documents showing he consulted with counsel and/or provided his commander with a document showing his chosen elections. e. On 17 March 2002, the commander submitted his separation recommendation to the separation authority. The commander cited chapter 8 (Entry-Level Performance and Conduct), paragraph 8-2a (sic, paragraph 8-1a) as his authority and stated, "I have investigated the facts and circumstances concerning the above-named individual's request for discharge. This individual was given maximum allowable time to enroll and participate in a program of rehabilitation and failed to comply." f. The separation authority's action is unavailable for review, but the applicant's service record includes his NGB Form 22 and separation orders. (1) The applicant's NGB Form 22 shows the following: (a) Item 4 (Date of Enlistment) – 20 July 2000 (b) Item 5a (Rank) and 5b (Pay Grade) – PVT/E-1 (c) Item 6 (Date of Rank) – 20 July 2000 (d) Item 8b (Effective Date (of separation)) – 16 April 2002 (e) Item 10 (Record of Service): * Item 10a (Net Service This Period) – 1 year, 8 months, and 27 days * Item 10b (Prior Reserve Component Service) – "00/00/00" * Item 10c (Prior Active Federal Service) – "00/00/00" (f) Item 12 (Military Education) – "N/A" (g) Item 13 (Primary Specialty Number, Title, and Date Awarded) – "N/A" (h) Item 18 (Remarks) – "INDIVIDUAL DISCHARGED WITHOUT PERSONAL NOTICER (sic) PER NGR (National Guard Regulation) 600-200 (Enlisted Personnel Management), PARA 8-26E (2). NGB FORMS 22 AND 56 WERE MAILED TO INDIVIDUAL'S LAST KNOWN ADDRESS...." (i) Item 23 (Authority and Reason) – "NGR 600-200, PARA 8-26E (2) ACTS OR PATTERNS OF MISCONDUCT." (j) Item 24 (Character of Service) – "GENERAL (UNDER HONORABLE CONDITIONS)." (2) The applicant's separation order reflects the applicant general discharge under honorable conditions, effective 16 April 2002; the authority is paragraph 8-26e (2), NGR 600-200 and the ARNG loss code is "AD" (Alcohol or Other Drug Abuse). g. The applicant's available service record includes his NGB Form 23 (ARNG Current Annual Statement) and NGB Form 23A1. (1) NGB Form 23: * Under Military Membership Status Identifier "B1" (Army National Guard Unit Member), the form indicates 41 points for inactive duty training (IDT) during the period 20000720-20010618 * For Military Membership Status Identifier "B7" (Army National Guard Unit Member on Initial Entry Training), the form shows active duty points for the period 20010619 to 20020416 (2) NGB Form 23A1: (a) Under "Inactive Duty Training," the form reflects the applicant's attendance between 9 November and 7 April 2002; no entry for March 2002 and nothing after April 2002. (b) For "Active Duty/Active Duty Training/Active Duty for Special Work," the form lists the following: * 20010716-20010719 – 4 days * 20010720-20010731 – 12 days * 20010801-20010815 – 15 days * 20010816-20010831 – 16 days * 20010901-20010915 – 15 days 4. The applicant requests correction of his NGB Form 23A1 to show his active duty and inactive duty service. a. NGR 680-2 (Automated Retirement Points Accounting System (RPAS)), in effect at the time, stated ARNG unit commanders had the responsibility for ensuring the accurate and timely reporting of data pertaining to credit for retirement points, as earned by all Soldiers under their administrative control. Additionally, unit commanders were required to forward reviewed and verified copies of NGB Forms 23 and 23A1 to the appropriate records custodian for inclusion in the Soldier's military personnel record. According to paragraph 2-4 (Award of Retirement Points for Service on or after 1 July 1949), commanders were to award only one retirement point per day for a Soldier's service. In addition, commanders could award retirement points for active duty based on a DD Form 214 or DD Form 220 (Active Duty Report). b. AR 635-5 (Separation Documents), in effect at the time, stated transition centers were required to issue Reserve Component Soldiers a DD Form 214 when the Soldiers had completed their IADT and were awarded a military occupational specialty (MOS); this occurred even if the active duty period was less than 90 days. c. While the applicant's available service record includes his order to IADT, his record is void of any documentary evidence that confirms he actually entered active duty. Additionally, the record does not reflect that a military school awarded the applicant an MOS. (1) Paragraph 2-9 (Burden of Proof), AR 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., what the Army did was correct). (2) The applicant has the burden of proving an error or injustice by a preponderance of the evidence. d. During the applicant's era of service, ARNG commanders could separate Soldiers, per paragraph 8-26q (later moved to paragraph 8-26e (2)) in NGR 600-200, based on acts or patterns of misconduct and when the command had identified the Soldier as a first-time drug offender. Commanders could, but were not required to initiate separation action against Soldiers in the ranks of private (PV1)/E-1 to corporal (CPL)/E-4. The regulation additionally stipulated commanders were to refer all Soldiers identified as drug users for treatment or counseling and to begin separation proceedings immediately for those Soldiers who refused or failed to enroll in a rehabilitation program. e. In his initial separation notification to the applicant, the commander cited chapter 12 (Misconduct), paragraph 12-d (Abuse of Illegal Drugs), AR 135-178 as the regulatory separation authority; however, in his separation recommendation to the separation authority, the commander identified his regulatory authority was chapter 8 (Entry-Level Performance and Conduct). When the separation authority ordered the applicant's discharge, he showed the regulatory authority as paragraph 8-26e (2) (Acts or Patterns of Misconduct), NGR 600-200. (1) Paragraph 8-1b, AR 135-178 stated, "Nothing in this chapter prevents separation under another provision of this regulation when such is warranted." (2) AR 135-178 defined entry-level status for a Reserve Component Soldier as starting at his/her enlistment, and continuing until either: * the Soldier had served one continuous period of 180 days of active duty, or * 90 days after the beginning of the second period of active duty, for those Soldiers whose training was split into two separate periods of active duty (3) Soldiers separated in an entry-level status received an uncharacterized character of service. On a case-by-case basis, the Secretary of the Army or the Secretary’s designated representative could award a characterization of honorable, based on the presence of unusual circumstances involving personal conduct and performance of military duty. (4) NGR 600-200, paragraph 8-7f (Entry-Level Status Discharge (Uncharacterized separation as defined in paragraph 1-20 (Uncharacterized Separations) (later moved to paragraph 2-11 (Separation where Service is Uncharacterized)), AR 135-178). This paragraph stated, "No discharge certificate or characterization of service is authorized." f. The ABCMR does not grant requests for relief solely to make the applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity and injustice guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the National Guard Bureau advisory, the Board concurred with the advising official finding a review of the Soldier records show that his active-duty training time started on 19 June 2001 as recorded, however the period of 19 June 2001 through 16 April 2002 is recorded as Active-Duty Training (ADT) time which provides more points. However, archived records within the Mississippi Army National Guard (MSARNG) were not able to produce a DD Form 214 that would show a stop point of ADT. 2. Evidence in the record shows the applicant’s period of service from 19 June 2001 through 12 October 2001 is already recorded as ADT, however if the Soldier could provide a copy of a DD Form 214. The Board recommends the applicant attain his records from the MSARNG so that his time in service can be reverted to an Inactive Drill Training (IDT) status. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, 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 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. 2. NGR 680-2 (Automated Retirement Points Accounting System (RPAS)), in effect at the time, stated ARNG unit commanders had the responsibility for ensuring the accurate and timely reporting of data pertaining to credit for retirement points earned by all Soldiers under their administrative control. Additionally, unit commanders were required to forward reviewed and verified copies of NGB Forms 23 and 23A1 to the appropriate records custodian, for inclusion in the Soldier's military personnel record. According to paragraph 2-4 (Award of Retirement Points for Service on or after 1 July 1949), commanders were to award only one retirement point per day for the Soldier's service. In addition, commanders could award retirement points for active duty based on a DD Form 214 or DD Form 220 (Active Duty Report). 3. AR 635-5 (Separation Documents), in effect at the time, stated transition centers were required to issue Reserve Component Soldiers a DD Form 214 when the Soldiers had completed their IADT and were awarded a military occupational specialty (MOS); this occurred even if the active duty period was less than 90 days. 4. AR 15-185, currently in effect, states in paragraph 2-9 that the ABCMR begins its consideration of each case with the presumption of administrative regularity; the applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. NGR 600-200, in effect at the time, stated: a. Paragraph 8-7f (Entry-Level Status Discharge (Uncharacterized separation as defined in paragraph 1-20 (Uncharacterized Separations) (later moved to paragraph 2-11 (Separation where Service is Uncharacterized)), AR 135-178). This paragraph stated, "No discharge certificate or characterization of service is authorized." b. Paragraph 8-26q (later moved to paragraph 8-26e (2)) stated that when the command had identified the Soldier as a first-time drug offender, commanders could, but were not required to initiate separation action against Soldiers in the ranks of private (PV1)/E-1 to corporal (CPL)/E-4. The regulation additionally required commanders to refer all Soldiers identified as drug users for treatment or counseling, and were to begin separation proceedings immediately for those Soldiers who refused or failed to enroll in a rehabilitation program. 6. AR 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), in effect at the time, set policies and procedures for the administrative separation of enlisted Army National Guard and USAR Soldiers. a. Paragraph 2-9a (Honorable). An honorable characterization was appropriate when the quality of the Soldier's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious- that any other characterization would be clearly inappropriate. b. Paragraph 2-11 (Separation where Service is Uncharacterized). Soldiers in an entry-level status received an uncharacterized character of service. On a case-by-case basis, the Secretary of the Army or the Secretary’s designated representative could award a characterization of honorable, based on the presence of unusual circumstances involving personal conduct and performance of military duty. c. Chapter 8 (Entry-Level Performance and Conduct). Commanders could separate Soldiers while they were in an entry-level status, based on the commander's determination that the Soldier was unqualified for further military service because of unsatisfactory performance or conduct (or both). d. Chapter 12, paragraph 12-1d (Abuse of Illegal Drugs) stated commanders could separate Soldiers for the commission of a serious military or civilian offense if a punitive discharge was an authorized punishment for the same or closely related offense in the Manual for Courts-Martial. This paragraph stated the Army considered the abuse of illegal drugs as serious misconduct. e. In the Glossary, the regulation defined entry-level status for a Reserve Component Soldier as starting at his/her enlistment, and continuing until the Soldier had served one continuous period of 180 days of active duty. For Soldiers whose training was split into two separate periods of active duty, entry-level status ended 90 days after the beginning of the second period of active duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016987 1 ABCMR Record of Proceedings (cont) AR20210016987 1