PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2002067802


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. William D. Powers		Member
Ms. Linda M. Barker		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS:

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his discharge from the Puerto Rico Army National Guard (PRARNG) be revoked and that the record not show that he was absent without leave (AWOL) on 26-27 September, 3-4 October, and
10-12 October 1998.

3. The applicant states, in effect, that he never received orders, verbal or written, to be on state mobilization on 26-27 September and 3-4 October 1998, following Hurricane Georges. He states that he was ill (major severe depression) from
8 October 1998 through 9 November 1998, and provides medical documentation to support his contention. The documents show that on 8 October 1998, the doctor prescribed rest from work for two weeks and he was later treated by partial hospitalization until 9 November 1998. He states that he could not contact the unit about his absence because the phone lines were down as a result of the hurricane but that he sent the doctor's prescription to the unit. He states that he complied with sick leave authorization procedure to the full extent of his capabilities to do so under the circumstances. He provides copies of the documents relative to his discharge from the PRARNG and the subsequent termination of his military technician employment. He provides a copy of his noncommissioned officer evaluation report for the period of October 1997 through September 1998. He also provides copies of less severe actions taken against other PRARNG members who were charged with AWOL during the period in similar circumstances.

4. The applicant's counsel provides a brief which reiterates the applicant's contentions and adds, "Even if applicant's absences were unauthorized, though they were not, discharge after more than 19 years of military membership – for absences during a three-week period in mitigating circumstances including severe depression before and throughout that period, where he had never before, in over nineteen years, been accused of unauthorized absence – was too severe and inconsistent with the prevailing practice of the PRARNG."

5. The applicant’s military records show that in 1998, he was a sergeant first class (SFC) in the PRARNG with over 19 years of service, assigned to the
840^th Maintenance Company in Juana Diaz, Puerto Rico, as a maintenance section chief. He was also a full time military technician in the position of a heavy mobile equipment repairer inspector in the Mobilization and Training Equipment Site (MATES), Camp Santiago, Salinas, Puerto Rico.

6. On 22 October 1998, the company commander of the 840^th issued a memorandum to the applicant notifying him of his intention to separate the applicant with an honorable discharge for misconduct due to his being AWOL from the MATES on the weekends of 26-27 September, 3-4 October, and
10 -12 October 1998, 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 connection with recovery efforts following Hurricane Georges. The memorandum advised the applicant of his right to consult with counsel and to present rebuttal comments within 15 days. On 17 November 1998, the applicant provided a rebuttal that he had not received verbal or written orders to be at the MATES on
26-27 September or 3-4 October, that his first sergeant confirmed that he had not been ordered to duty, that on 3-4 October he was helping his mother who was ill recover from the hurricane damage to her house, and that on 10-12 October he was very sick and presented medical documents to support his statement. The medical documents showed that he was suffering from major severe depression. He also stated that he had worked many extra hours as a guardsman to help Puerto Rico recover from Hurricane Georges.

7. From the Associated Press, San Juan, Puerto Rico – "(Hurricane Georges) plowed over and past 17 Caribbean islands, crashing into the lives of more than 30 million people from September 15-29 (1998). As each island fell prey to Hurricane Georges' battering winds, the casualties mounted. Island nations had to come to grips with lost harvests, wrecked government buildings, lost tourist income and sudden populations of newly homeless. Many past hurricanes damaged only a few islands. Repairs were often quick. Georges was different. It swept past island after island in the northern Caribbean, causing billions of dollars in destruction and killing at least 400 people. … In Puerto Rico, at least three were killed directly by the storm, nine others by heart attacks and other health complications, 28,000 people in shelters (17,000 homeless). Hundreds of homes lost, near-total blackout, most water service lost. Damages surpass $2 billion. … Along with shelter, the refugees needed food, water, ice, clothing - needs that have overwhelmed the region's small economies and taxed the disaster response capabilities of the United States, France and other donor nations. … In its wake, strangers and neighbors banded together to clear debris, stand in tedious lines for ice, water, propane and batteries and carry food to the needy."

8. On 23 November 1998, the battalion commander endorsed the recommendation and on 25 November 1998, the troop command commander endorsed the recommendation to The Adjutant General (TAG) of Puerto Rico, recommending approval of separation. On 23 December 1998, the TAG approved the recommendation. On 5 January 1999, the PRARNG published orders 1-6 honorably discharging the applicant on 16 January 1999, and transferring him to the US Army Reserve Control Group (Reinforcement) under authority of paragraph 8-27k, National Guard Regulation 600-200 and paragraph 2(f)(ii), Puerto Rico National Guard Regulation (PRNG) 635-100. On 14 January 1999, PRARNG orders 6-2 amended orders 1-6 to change the separation authority to paragraph 1-27k, Appendix A, All States (Log Number P98-0061)

Enlisted Separations, and paragraph 2(f)(ii), PRNG 635-100. Paragraph 1-27k, Appendix A, All States (Log Number P98-0061) Enlisted Separations, states the authority for discharge as "For other reasons stipulated by State law." On the date of discharge, 16 January 1999, the applicant's National Guard Bureau
Form 22 (Report of Separation and Record of Service) shows that he had net service of 19 years, 8 months, and 24 days. The applicant's military technician employment was terminated on 9 February 1999, due to his loss of military membership (discharge from the PRARNG).

9. The applicant's record shows no other incident of misconduct. His evaluation reports, including the one that ended in September 1998, show excellence and success in values and noncommissioned officer responsibilities, his raters judged him among the best to fully capable in overall potential for promotion and service in positions of greater responsibility, and his senior raters judged him successful (block 1 or 2) in overall performance and superior (block 1 or 2) in overall potential for promotion.

10. The National Guard Bureau Memorandum, dated 20 October 1998, subject: All States (Log Number P98-0061) Enlisted Separations, in effect at the time, states that it, "replaces all policies as stated in Implementing Draft National Guard Regulation 600-200, chapter 8 (Discharges), 1 March 1997, and any previous NGR 600-200 with all changes, all states letters, and any and all other memoranda concerning enlisted discharges in its entirety." Paragraph 1-4 states that, "All involuntary administrative discharges require commanders to notify soldiers concerning intent to initiate discharge procedures. See AR 135-178, chapter 2, section II (Notification Procedure) and section III (Administration Board Procedures). … All soldiers with 6 or more years of total military service on that date of initiation of recommendation for separation … have the right to an administrative separation board." Paragraph 1-25 states that, "Separation boards are required for all soldiers with 18 but less than 20 years of qualifying service for retired pay. The board cannot be waived by the soldier per AR 135-178, paragraph 2-9f and 2-11c." Paragraph 1-32 states that soldier’s with between 18 and 20 years of service cannot be involuntarily discharged without Chief, NGB approval per AR 135-178, paragraph 1-25f, and board action.

11. Army Regulation 135-178 (Army National Guard and Army Reserve Separation of Enlisted Personnel), paragraph 2-4 (Notification Procedures) states, in pertinent part, that soldiers being considered for involuntary separation will be notified by letter of their rights which include the right to a hearing by an administrative separation board as prescribed in section III of the regulation if they have 6 or more years of service.

CONCLUSIONS:

1. The applicant was not informed in writing of his right to a hearing by an administrative separation board prior to separation nor was his recommended separation reviewed by an administrative separation board or approved by the Chief, NGB as required by NGR and Army regulation. He was therefore denied a fair and impartial review with representation and opportunity to present witnesses on his behalf. As such, his discharge was erroneous and unjust. The applicant's discharge from the PRARNG should be revoked, he should be restored to his PRARNG active status, and he should be provided all pay and allowances and retirement points from 16 January 1999 to the present as though he had participated fully in all drills and annual training. All documents and references to this discharge and its erroneous procedure should be expunged from the record.

2. There is insufficient evidence to support the applicant's contention that he was not AWOL on 26-27 September, 3-4 October, and 10-12 October 1998.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. Insofar as records of the Puerto Rico Army National Guard are concerned, the ABCMR recommends that the Adjutant General of the Commonwealth of Puerto Rico:

         a. revoke the 16 January 1999 discharge of the individual concerned from the PRARNG;

         b. remove from the records of the individual concerned all documents and reference to his discharge from the PRARNG; and

         c. provide him all military pay and allowances and retirement points from 16 January 1999 to the present as though he had participated fully in all drills and annual training.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

_RJW__ _WDP___ _LMB___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  Raymond J. Wagner
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002067802
SUFFIX
RECON
DATE BOARDED	20030304
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1.	134.02
2.	135.00
3.
4.
5.
6.