MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        
        

         BOARD DATE: 30 September 2003
         DOCKET NUMBER: AR2002077230

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		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 rank be restored to staff sergeant (SSG/E-6) and that his reenlistment eligibility (RE) code be changed from RE-3 to a more favorable one that will allow him to reenlist.

APPLICANT STATES: In effect, that for 12 years he was a good soldier in the Army National Guard (ARNG)/Florida Army National Guard (FLARNG); that he performed his duties to the best of his abilities; and that his unit treated him unfairly because he and some other soldiers in the unit filed a report with the Inspector General’s (IG) Office. He states that he had family problems, but he could not discuss them with his unit leaders. He states he met with a colonel from the Inspector General’s (IG) Office and that after the initial meeting and subsequent letters and phone calls to the IG investigator, he began to receive bad reviews from his chain of command. Not only did his noncommissioned officer evaluation report (NCOER) ratings take a downward turn, but he was also threatened with an Article 15 for every little mistake he supposedly made.

In support of his application, the applicant submitted the following documents: a statement in his own behalf with an attachment of 15 tabbed documents; two statements from fellow soldiers on his behalf attesting to the condition of the unit; a copy of the settlement agreement between the applicant and the United States; and a copy of his Official Military Personnel File.

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

He enlisted in the FLARNG on 18 November 1986. On 17 November 1992, he was honorably released and transferred to the United States Army Reserve (USAR) Control Group. He was credited with 6 years of service.

The applicant initiated action to reenlist in the FLARNG. On 12 March 1993, he signed NGB Form 590 (Statement Of Understanding Of Reserve Obligation And Responsibilities) in which he acknowledged: that he was required to attend all scheduled unit-training assemblies unless excused by proper authority; that if he changed his residence to a location too distant to permit continued participation with his unit, he would apply for an interstate transfer or, if applicable, he would be authorized 90 days of excused absences during which time he had to locate and join a new unit; that he would keep his commander informed of his current residence; and that if he accrued 9 or more absences during any continuous
365-day period, or failed to participate satisfactorily for any reasons, he could be declared an unsatisfactory participant and become subject to reduction in grade, discharge, and transfer to the Individual Ready Reserve (IRR).

On 13 October 1993, the applicant reenlisted in the FLARNG for 8 years under the 6x2 option (6 years in a Troop Program Unit, or TPU, and the balance in the IRR).

The applicant's NCOER ratings on DA Form 2166-7 indicate the following:

a. For the period December 1993 and November 1994, he received an overall rating of "successful" in Part IVb (Values/NCO Responsibilities) and "among the best" in Part Va (Rater - Promotion Potential). In Part Vc (Senior Rater - Performance), the applicant’s performance was rated as "successful" (2 block) and, in Part Vd (Senior Rater - Potential), his potential was rated as "superior" (2 block).

b. For the period November 1995 and October 1996, he received an overall rating of "successful" in Part IVb and "fully capable" in Part Va. In Part Vc, the applicant’s performance was rated as "successful" (3 block) and, in Part Vd, his potential was rated as "superior" (3 block).

c. For the period November 1996 and October 1997, he received an overall rating of "successful" in Part IVb and "among the best" in Part Va. In Part Vc, the applicant’s potential was rated as "successful" (2 block) and his potential was rated as "superior" (2 block) in Part Vd.

d. For the period November 1997 and October 1998, he received an overall rating of "needs some improvement" in Part IVb and "marginal" in Part Va. In Part Vc, the applicant’s potential was rated as "poor" (5 block) and his potential was rated as "poor" (5 block) in Part Vd.

On 13 July 1998, a flag was initiated for the applicant’s failure to pass the Army Physical Fitness Test (APFT).

On 8 November 1998, the applicant was counseled regarding retention, performance, and attendance. He was told he could reenlist for 1 year provided he transfer to another unit in Apalachicola, Florida. He was told he needed to improve his attendance at drill and come to drill with a good attitude, prepared for training, and to train his troops. He was also informed that he would receive a written counseling statement every 90 days for the next year.

On 10 November 1998, the flag initiated on 13 July 1998 for the applicant’s failure to pass the APFT was removed because the matter was resolved favorably.

On 13 November 1998, the applicant extended his period of service for 3 years; thereby establishing 17 November 2001 as his new expiration of term of service (ETS) date.

On 18 November 1998, the applicant was reassigned from squad leader to infantry NCO, with an effective date of 1 December 1998.

On 8 December 1998, the applicant was awarded the Army Reserve Component Achievement Medal (2nd award).

On 28 April 1999, the applicant called his unit to inform them he was unable to attend drill scheduled for 1-2 May 1999 because he had to work. He was informed that he needed to provide a letter from his employer. He did not provide a letter.

On 11 June 1999, the applicant was counseled for not providing documentation from his employer on his absence from drill on 1-2 May 1999. He was advised that the absent leave code would be changed to absent without leave (AWOL) and that the next time he was AWOL from a scheduled training assembly, he would be recommended for a field grade nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice. The applicant refused to sign the counseling statement.

During Annual Training (AT) on 23 June 1999, the applicant was counseled for standing in the back of a 2 & 1/2 ton truck while it was moving. He was restricted to the installation for the remainder of the AT period. The applicant refused to sign the counseling statement.

On 5 August 1999, the applicant advised his unit commander by letter that he would not be attending drill on 7-8 August 1999 because he had to work. He indicated that he believed that he would be written up again for an unexcused absence, but felt that it was his duty to inform the commander of his absence. He also stated that his civilian job took precedence over his Guard duties because the Guard was docking his pay.

On 24 August 1999, the unit commander terminated the applicant’s eligibility for the SRIP (Selected Reserve Incentive Program) due to unsatisfactory participation.

On 27 September 1999, the applicant’s unit commander requested that the applicant be reduced from SSG/E-6 to SGT/E-5 for inefficiency. It was also noted that the applicant was scheduled for a summary court-martial on 3 October 1999 and if he were reduced by court-martial action, the reduction for inefficiency would not be necessary.

On 28 September 1999, the unit commander requested that separation action be initiated under the provisions of chapter 13, Army Regulation 135-178, for unsatisfactory participation. The unit commander’s reason for the proposed action was the applicant’s accumulation of 9 or more AWOL periods within 1 year. The applicant was advised that he had 30 days to acknowledge receipt of notification and that failure to respond would constitute a waiver of his rights.

The applicant's chain of command convened a summary court-martial on 3 October 1999 to resolve charges of unexcused absence/AWOL brought against the applicant. The applicant failed to appear and it is unclear from the record whether he was ever tried.

On 8 October 1999, the applicant’s unit requested that he be discharged for unsatisfactory participation because he had accumulated a minimum of 12 unexcused absences during a one-year period. The unit commander stated that the applicant was advised in advance of scheduled training and that numerous attempts had been made to contact him, to include 5 telephone calls, 8 certified letters, and personal contact, all without success.

On his NCOER for the period November 1998 to October 1999, the applicant received in Part IVa (Values/NCO Responsibilities) "no’s" in 6 out of 7 blocks and an overall rating of "needs much improvement" for Part IVb. He was rated as "marginal" in Part Va. In Parts Vc and Vd, the applicant’s performance and potential were rated as "poor" (5 block).

On 2 December 1999, the applicant was reduced for from SSG/E-6 to SGT/E-5 (Sergeant) for inefficiency.

On 11 January 2000, the applicant was separated from the FLARNG with a general, under honorable conditions discharge for unsatisfactory participation and he was transferred to the USAR. He was credited with 6 years, 1 month, and 29 days of military service for this period of service. His NGB Form 22 (Department of the Army and Air Force National Guard Bureau Report of Separation and Record of Service) reflects an RE code of RE-3. The applicant was not available to sign his NGB Form 22 and it was mailed to his last known address.

On 11 January 2001, the applicant returned items of military equipment to the FLARNG; however, it was returned to him because he did not send it to the hand receipt holder. On 24 January 2001, he sent the equipment to the hand receipt holder.

On 7 September 2002, the applicant enlisted in the Georgia Army National Guard (GAARNG) under the "Try One [year] in the Guard" Program for training in military occupational specialty (MOS) 19K, Armor Crewman. He is currently serving in MOS 19K in the rank of sergeant (SGT/E-5).

On 13 December 2002, the applicant was notified that this Board required a copy of his Official Military Personnel File (OMPF) or, at a minimum, a copy of his NGB Form 22 and a copy of the NJP proceedings to consider his case.

On 4 January 2003, the applicant provided additional documents in support of his application. At this time, he indicated that he had joined the GAARNG, but would still like his RE code RE-3 removed from his record.

On 17 May 2003, the applicant extended his oath of enlistment by 3 years to 6 September 2006.

National Guard Regulation (NGR) 600-200 governs the procedures covering enlisted personnel management of the Army National Guard. Chapter 8 of NGR 600-200 provides for the separation of enlisted personnel from the ARNG. It provides, in pertinent part, that prior to separation, soldiers will be assigned RE codes based on the reason for discharge. RE-3 applies to persons eligible for reenlistment only with an approved waiver. Other portions of NGR 600-200 provide that the appropriate commander may reduce an enlisted soldier for inefficiency when the soldier lacks the abilities and qualities expected of his grade and experience, and fails to complete required training.

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. The applicant requested that this Board restore his rank to that of SSG and change his RE Code from RE-3 to one that would permit him to reenlist, presumably RE-1.

2. The applicant was assigned the correct RE code based upon the reason for his discharge and he has not provided evidence to prove otherwise. However, the Board finds the issue of changing the applicant's RE code moot because, in spite of his RE-3 code, he was permitted to join the GAARNG on 7 September 2002. His RE-3 code was not a discriminator and he has not shown that it has harmed him in any way.

3. The applicant's reduction from SSG/E-6 to SGT/E-5 for inefficiency is tied to his unsatisfactory participation in unit drills and assemblies. The record shows that the applicant, claiming civilian work conflicts, failed to attend numerous drills and assemblies. The Board notes his contention that he was only told to provide written documentation for his absence from drill, but not specifically from whom the documentation should originate. Even if true, the Board finds the applicant's statement incredible and believes that, as a SSG with more than 10 years' ARNG experience, he should have known to obtain the verification from his employer.

4. The Board notes that during his enlistment processing, the applicant was advised that he could be reduced for inefficiency upon being declared an unsatisfactory participant. The applicant’s chain of command tried to assist him

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in performing and conducting himself to Army standards by providing counseling and administrative sanctions against him; however, he chose to reject this help and failed to respond appropriately. The Board finds that his administrative reduction for inefficiency was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to have substantially jeopardized the applicant's rights.

5. 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.

6. 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

__rjw___ __mhm___ __mvt___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077230
SUFFIX
RECON
DATE BOARDED	20030930
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0300
2.	129.0500
3.
4.
5.
6.