MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 February 2002
         DOCKET NUMBER: AR2001061864

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Lester Echols		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)

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APPLICANT REQUESTS: In effect, that his discharge from active duty in the Active Guard/Reserve (AGR) Program in California on 9 September 1986 be voided, that he be given active duty credit, promotions that would have occurred had he not been unjustly and erroneously discharged, back pay and allowances, and placement on the Active Duty Retired List with entitlement to Retired pay from the date he was placed on the Retired List.

APPLICANT STATES: In effect, that while serving in the AGR Program for the California Army National Guard (CAARNG), he was unjustly discharged from active duty prior to his expiration of term of service (ETS). He goes on to state that at the time he had accepted an AGR position in the Arkansas Army National Guard (ARARNG) and he was not supposed to be discharged until he was accessed into the ARARNG. He further states that it was to be a concurrent action; however, he was discharged from the CAARNG with over 17 years of active duty service and when he reported to the ARARNG, he discovered that the position he was promised was no longer available to him. He was at that time told that he would have to find a home on his own and when he did, he had to accept a voluntary reduction from the pay grade of E-7 to E-5 to accept the position he found. He also states that he was misled from the beginning and that had he not been prematurely discharged, he would have been allowed to return to his CAARNG position to serve out the remainder of his contract, which would have given him almost 20 years of active duty. He also contends that no prudent person would risk losing a career by accepting an interstate transfer from one State to another, which indicates that he was assured that it could be accomplished without a break in service. Accordingly, he should be granted a 20-year active duty retirement with entitlement to all back pay, allowances, creditable active duty service and promotions that he would have received had he not been deceived and improperly discharged.

EVIDENCE OF RECORD: The applicant's military records show:

He initially enlisted in the Regular Army on 24 March 1965 and served until he was honorably released from active duty on 23 January 1969 and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). He again enlisted in the Regular Army on 24 March 1969 and served on active duty until he was honorably discharged on 21 March 1975.

On 27 May 1975 he enlisted in the CAARNG and served until he was honorably discharged on 1 August 1975.

He again enlisted in the CAARNG on 9 November 1978 and was ordered to full time training duty on 19 November 1979, for a period of two years. He remained on active duty in the AGR program through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 22 June 1981.

On 8 September 1986, the applicant submitted a letter of resignation from AGR status in the CAARNG for the purpose of accepting an position in the ARARNG. He was honorably released from active duty (REFRAD) on 9 September 1986. At the time, his scheduled ETS was 8 November 1988 and the orders that were published transferring him to the ARARNG specified that he would not be discharged from the National Guard, but would be transferred to the control of the ARARNG as an interstate transfer.

On the date of his REFRAD from the CAARNG, he transferred to the ARARNG and was assigned to a unit in Danville, Arkansas, in the pay grade of E-5. He remained in the ARARNG until 9 July 1987, when he transferred to the Georgia Army National Guard (GAARNG). He remained in the GAARNG until he transferred to a USAR Troop Program Unit on 12 May 1992.

Meanwhile, on 9 February 1990, the applicant received his notification of eligibility for retired pay at age 60 (20 year letter) from the GAARNG indicating that he was eligible to apply for and receive retired pay benefits effective 11 January 2007.

On 30 November 1995, the applicant’s commander submitted a request through the chain of command requesting that the applicant be processed for retirement due to his reaching his mandatory release date (MRD) on 8 December 1995. The applicant, who was the unit administrator at the time, also provided a similar request indicating that as a military technician, he was also entitled to receive separation pay. He completed an election form in which he elected to be transferred to the Retired Reserve with Special Separation Pay. Accordingly, he was transferred to the Retired Control Group, effective 8 January 1996, due to his having the maximum years (27) of service allowed for his pay grade.

A review of the available evidence shows that the applicant submitted his issues for review to the Inspector Generals (IG) of the ARARNG, GAARNG and the National Guard Bureau (NGB). The NGB IG’s office conducted an investigation in cooperation with the ARARNG and the GAARNG and concluded that his allegations were unfounded. The NGB IG also concluded that the applicant had resigned his AGR position in the CAARNG on 8 September 1986, and that his position in the ARARNG simply did not materialize. NGB Regulation 600-5 provides in pertinent part, that AGR members who voluntarily request separation from the AGR program are not eligible to re-enter the AGR program for 1 year, unless a waiver is approved by the NGB. Essentially, in order for such a transfer to be accomplished, coordination between the AGR Program Managers of both states was required. The IG also stated that the applicant had initiated a series of inquiries and requests for investigation that had proved to be unsubstantiated.

A review of the documents submitted by the applicant with his application includes a review of the Request for Discharge or Clearance from Reserve Components (DD Form 368). The copy of the form submitted by the applicant appears to have been altered by adding information suggesting that coordination had been made to transfer the applicant from one AGR position in the CAARNG to another AGR position in the ARARNG and that orders were to be exchanged. The type of these comments is not consistent with the rest of the type on the form and does not coincide with the original form contained in his official records. Likewise, the Interstate Transfer Request (NGB Form 22-4-R) submitted by the applicant simply indicates transfer to the ARARNG.

Army Regulation 135-18 prescribes the policies and procedures for the administration of the AGR Program. It provides, in pertinent part, that individuals who are voluntarily separated from the AGR Program for 2 or more days are ineligible to reenter the AGR Program for 1 year from the date of separation.

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. Although the Board can find no evidence to support the applicant’s contention that he had been promised an AGR position in the ARARNG, it is indeed unfortunate that it did not materialize, if such was the case. However, it was the applicant’s responsibility, not the responsibility of the CAARNG, to ensure that the position that he was seeking was a valid position. Accordingly, when the CAARNG approved his request, effected the REFRAD, and transferred him to the ARARNG, they no longer had any control over the applicant.

2. Furthermore, the Board finds that in the absence of evidence to show that he was being transferred from one AGR position to another AGR position, he was properly REFRAD in accordance with his request at the time and the applicable regulations. Given the actions that transpired at the time and the fact that he was not discharged from the National Guard, but simply REFRAD and transferred to another State, it appears to the Board that there was no commitment on the part of the ARARNG to give him an immediate AGR position.

3. The Board has noted the applicant’s contentions and has reviewed the evidence submitted with his application as well as the evidence of record. In doing so, the Board finds that there is insufficient evidence to show that he was unjustly REFRAD based on his request for transfer to the ARARNG.

4. 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.

5. 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

____fe __ ___mkp__ ___le ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061864
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/07
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300/REINSTATEMENT
2.
3.
4.
5.
6.