MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 August 2002
         DOCKET NUMBER: AR2002067798

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret K. Patterson		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 the Puerto Rico Army National Guard (ARNG) be voided and that his record be corrected to show he was not absent without leave (AWOL) on 26 September 1998.

APPLICANT STATES: In effect, that his contentions and issues are presented in the brief provided by his counsel.

COUNSEL CONTENDS: In effect, on 16 January 1999, the applicant was discharged from the Puerto Rico ARNG after having served for over 20 years. Solely as a consequence of this discharge, he was terminated from his Title 32 of the United States Code, section 709 (10 USC 709) technician employment, which he had held for 13 years. The reason for the applicant’s discharge was the accusation of his unit commander, made in a 22 October 1998 memorandum, that he had been absent without leave (AWOL) from his military duties on
26 September 1998. Within 15 days of receiving this memorandum, the applicant submitted a rebuttal statement. In this rebuttal, the applicant indicated that he truthfully did not know that he had been ordered to military duty until being notified at his home at 6:00 PM on 26 September 1998. The applicant claimed that the noncommissioned officer (NCO) who made this notification told him to report for duty on 27 September 1998 at 2:00 PM. The applicant specifically asked the NCO if he also had to report for duty on 26 September 1998, which was that same day; however, the NCO told him no and that he was on the list for Sunday, 27 September 1998 at 2:00 PM. The applicant reported for duty on 27 September 1998 at 2:00 PM as ordered.

Counsel also claims that on 22 September 1998, which was after the hurricane, only about 15 members of the applicant’s unit reported to the Mobilization and Training Equipment Site (MATES) for duty. Most remained home cleaning their homes of the hurricane damage. The members of the unit that reported to work could not get into Camp Santiago because the entrances were blocked by water.
Some reported to the Coliseum Cholo Espada for work. However, the applicant was told by a lieutenant colonel that he had lost all the chickens from his farm and he needed some help to bury them. The applicant reported to the Town Hall with the lieutenant colonel. The Mayor called the Adjutant General, and he gave the lieutenant colonel the mission of burying the chickens to avoid an epidemic and permission to use the engineer battalion construction equipment to accomplish this task. The applicant was given the mission to help the town with some water tanks.

Counsel contends that on 22 September 1998, it was not clear to the applicant whether anyone would be required to report to duty on the upcoming weekend, and he was not told that he had to report to work on the weekend of 26 and
27 September 1998 on that date. The applicant worked on the water tank mission from 22 through the morning of 25 September 1998. At which time his unit commander changed the applicant’s mission to clean up work at the MATES.
Counsel states that when notified by his unit commander of the change of mission, the applicant informed the unit commander that he had finished working his schedule for the week. At this time, the applicant also told the unit commander that he had worked five days and over fifty hours, and that he was going home to help his family. Later, the applicant was charged with acting improperly by going home; however, the administrative action over this issue was never resolved. Further, the applicant received full pay for period ending on
26 September 1998. Counsel claims that the applicant was never told on
25 September 1998, or any other day before then, that he was required to report for duty on 26 September 1998. The applicant was absent from his duties on
26 September 1998 because he had not been previously informed that he was ordered to military duty on that day. Counsel further contends that at no time in his over 20 years of service had the applicant ever been accused of being AWOL. Further, the applicant received a sustained superior performance award for his technician work from August 1997 through July 1998. In addition, he received, directly from the Adjutant General of the Puerto Rico National Guard, a Disaster Relief Ribbon for the period 20 September 1998 to 20 November 1998. This award was for his exceptional meritorious service during disaster relief operations resulting from Hurricane Georges. Counsel also claims that the applicant was one of only a few employees who reported for work on
22 September 1998, and he worked more than 50 hours through 25 September 1998; and he timely reported for duty on 27 September 1998, after having been told to do so for the first time on 26 September 1998. Counsel emphasis that when notified to report to work on 27 September 1998, the applicant asked the notification NCO if he was required to report for duty on 26 September 1998, and he was told no.

Counsel indicates that Puerto Rico ARNG documents enclosed show that several others were accused of unauthorized absences during this period by the Puerto Rico ARNG officials. However, lesser sanctions were imposed in those cases. Counsel concludes that the applicant’s separation for unauthorized absence on 26 September 1998, was erroneous and unjust, because the applicant did not know that he had been ordered to report for duty on that day. Even if the applicant had known of his assignment to duty on 26 September 1998, though he did not, discharge after more than 20 years of service for a one day absence was too severe a punishment and inconsistent with the prevailing practice of the Puerto Rico ARNG. This is especially true considering the applicant was one of the few that reported for duty on 22 September 1998, had worked more than 50 hours that week, had received a ribbon for exceptional service during the disaster relief operations, and had never before been accused of an unauthorized absence.

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EVIDENCE OF RECORD: The applicant's Army National Guard military records and the specific facts and circumstances pertaining to his discharge were not available to the Board. Review of this case was accomplished using the documents and information provided by the applicant and his counsel, and the advisory opinion rendered by the Chief, Personnel Policy, Programs and Manpower Division, Department of the Army (DA) National Guard Bureau (NGB), Arlington, Virginia.

On 22 October 1998, the applicant’s unit commander notified the applicant that he was initiating action to separate him from the Puerto Rico ARNG for misconduct, AWOL. The authority given for the separation action was paragraph 2(f)(ii), Puerto Rico ARNG Regulation 635-100. The unit commander indicated that the reason for the separation action was that the applicant was absent without authorization from his duties at the MATES. This absence was in violation of an order to Military State Active Duty, pursuant to the call to active duty made by the Governor of Puerto Rico in Executive Order OE-1998-26. The unit commander indicated that this was an act of misconduct and a violation of the Military Code of Puerto Rico and Puerto Rico ARNG Regulation 635-100. In his separation notification memorandum to the applicant, the unit commander allowed the applicant 15 days to consult with counsel, and/or to prepare and present a rebuttal to the charged misconduct.

On 7 November 1998, the applicant provided a rebuttal to the separation action. He indicated that he was absent from duty on 26 September 1998 due to the following reasons: he was home on 25 September 1998, when MATES employees were notified of activation on State mobilization; he was notified of the State mobilization activation by a NCO on 26 September 1998 at around 1800 hours at his home, at which time he was also told that he was required to report to duty on 27 September 1998; he went to work on State mobilization status just that day because he was working in his technician status on the following days until 1 October 1998, as he had been instructed to do; he asked the first sergeant if the unit called him at anytime to notify him of the State mobilization, and he was informed that he was not; his military record includes 20 years of service and no unjustified absences; he received the Army Good Conduct Medal for his active duty service, which indicates he was never absent from duty; he was probably the first MATES employee that arrived for duty on 20 September 1998, before the hurricane hit the island; his separation from the ARNG was excessive punishment for just an isolated minor infraction that was the result of a miscommunication. Finally, the applicant requested that the separation action against him be dismissed in light of the explanation he provided.

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On 16 November 1998, the applicant’s unit commander, after reviewing the applicant’s rebuttal, recommended that the applicant be separated from the Puerto Rico ARNG, with an honorable discharge, based on his misconduct. The unit commander indicated that although the applicant indicated he was absent because he was at home when MATES personnel were officially notified of the mobilization, the unit records confirmed that he was at home on 25 September 1998, because he had abandoned his place of duty without authorization. The unit commander also indicated that personnel were notified of the State mobilization on 22 September 1998, after reporting to their respective work shifts. The unit commander also pointed out that although the applicant claimed that he contacted the unit to verify that he was placed on State active duty, this was done after he had already been notified that all MATES personnel were placed on State active duty for the weekend of 26 and 27 September 1998, per the Governor’s Executive Order. Finally, the unit commander indicated that the applicant’s conduct was a detriment to the highest standards expected of the members of the Puerto Rico ARNG. His behavior during the mobilization period, in which thousands of members from ARNG units participated in the mission of restoring the basic needs and services to millions of people in Puerto Rico, were not in keeping with his rank and position. The fact that he was a full time employee added to the importance of him setting an example for fellow members the unit.

On 23 November 1998, the applicant’s battalion commander concurred with the unit commander’s recommendation, and strongly recommended the applicant’s separation. On 25 November 1998, the acting troop commander also concurred with the separation action, and strongly recommended that the applicant be separated.

On 23 December 1998, the Full Time Judge Advocate reviewed the separation action packet, and determined that the proceedings were done correctly according to regulations. For this reason, the Judge Advocate found the separation to be legally sufficient. Based on this determination, The Adjutant General of Puerto Rico approved the separation action on this same date.

On 5 January 1999, Orders Number 1-5, published by Headquarters, Puerto Rico State Area Command, ARNG, San Juan, Puerto Rico, directed the applicant be honorably discharged from the ARNG on 16 January 1999, and that he be transferred to the United States Army Reserve Control Group (Reinforcement), St. Louis, Missouri, to continue his Reserve service.

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In connection with the processing of this case, an advisory opinion was requested of and received, dated 18 June 2002, from the Chief, Personnel Policy, Programs and Manpower Division, NGB. This DA official indicated that the applicant’s request and separation action had been reviewed and it was determined that the action complied with all regulatory requirements. The applicant’s separation proceedings were processed in accordance with National Guard Regulation 600-200, and Puerto Rico National Guard Regulation 635-100.

Applicant’s counsel responded to the advisory opinion on the applicant’s behalf. His reply stated that the advisory opinion disputed none of the facts on which the application was based. It does not deny that the applicant did not know he had been ordered to report for duty on 26 September 1998, nor does it deny that the applicant’s discharge after more than 20 years of service was inconsistent with the policy of the Puerto Rico ARNG. Further, the advisory opinion does not dispute that a military member cannot be found to have been absent without authorization unless the member knew that he had been ordered to duty. Nor does it deny that the discharge of a military member for unauthorized absence is erroneous and unjust if the member did not know that he had been ordered to duty. Finally, counsel contends that the advisory opinion completely fails to address the relevant facts and issues and provides no basis for denying the application.

National Guard Regulation (NGR) 600-200 contains the policy and procedure on enlisted personnel management of the ARNG. Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge of enlisted personnel from the State ARNG, and it provides the authority to separate members for misconduct.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board notes the contentions of the applicant and counsel that the applicant was unaware that he was supposed to report to duty on the date he was charged with being AWOL; that he was notified that he did not have to report to duty until the day following the day he was declared AWOL; that the resultant discharge was too harsh for an isolated minor offense given the applicant’s record of over 20 years of service; and that the discharge action was not consistent with the Puerto Rico ARNG punishment action taken against other members with a similar violation during this same period. However, the Board finds insufficient evidence to support these claims.

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2. Although it appears that the applicant’s over 20 years of service and overall record of service would warrant some equity consideration. The Board finds that this consideration was likely the basis for his receiving an honorable discharge, as opposed to some lesser characterization of service. Thus, it concludes that the equity factors raised by the applicant and his counsel are not sufficiently mitigating to warrant the Board recommending that ARNG and State officials provide the requested relief.

3. In addition, the Board considered counsel’s claim that the applicant’s separation was inconsistent with Puerto Rico ARNG policy because others accused of unauthorized absences during this period received lesser sanctions. However, the Board does not use the outcome of other cases, that may contain relevant facts that are not apparent, in its deliberations. The Board reviews each case on its own merits based on a consideration of the available evidence.

4. Finally, in regard to the claims of counsel and the applicant that he was unaware that he had to report to duty on the date in question, the Board finds insufficient evidence to support this claim. The applicant provides a supporting statement that indicates that a unit NCO told him he did not have to report to duty on 26 September 1998. However, even if this statement is true, it does not fully convince the Board that the applicant was unaware that MATES personnel had been ordered to State active duty by the Governor, as is certified by the unit commander in his separation recommendation.

5. The available evidence confirms that the applicant’s separation was accomplished in accordance with applicable ARNG and State regulations, as confirmed by the NGB advisory opinion. Further, it was finally approved by the Adjutant General of Puerto Rico, based upon the recommendation of the Judge Advocate, who found the action was legally sufficient. Therefore, the Board is satisfied that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.

6. The Board has no authority to correct State ARNG records, governed under Title 32, and only recommends relief be provided by ARNG and State officials in cases where there is clear and compelling evidence that an error or injustice occurred. In this case, the Board finds no such clear and compelling evidence.

7. 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

__MKP__ __LE____ __RJW__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067798
SUFFIX
RECON
DATE BOARDED	2002/08/08
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999/01/16
DISCHARGE AUTHORITY	NGR 600-200
DISCHARGE REASON	Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2. 189	110.0000
3.
4.
5.
6.