PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2002077353


         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. Joseph A. Adriance		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, reinstatement in the Texas Army National Guard (TXARNG); promotion to sergeant major/E-9 (SGM/E-9), active duty service credit for the period 22 September 1985 through 21 September 1997 with pay and allowances and Noncommissioned Officer Evaluation Reports (NCOER) that cover this entire period; and retirement with full retired pay.

3. The applicant states, in effect, that he wants to be given credit for the years of active duty he was deprived from serving due to the discriminatory practices of the TXARNG. He claims that he was willing to sacrifice his civil service career to remain on active duty until he was subjected to the discriminatory practices of his superiors. He claims that he also suffered the humiliation and embarrassment at the hands of the friends of his superiors who occupied high level positions.

4. The applicant also claims that his superiors and their friends in high places literally tried to destroy his civil service career by giving him a separation document (DD Form 214) with the narrative reason for separation listed as “Relief from AGR for the Good of the Service”. He states that this action was taken even though he had no disciplinary action taken or contemplated during his tour of duty.

5. The applicant also comments that there was absolutely no reason for him to receive that type of separation document. He also claims that the official who prepared the DD Form 214 was located less than 100 meters from him, but still failed to call him in to sign the separation document because he knew what he was doing was wrong. The applicant indicates that when he confronted this official, he was told that there was nothing wrong with the DD Form 214, and not to worry because it was an honorable discharge.

6. The applicant’s military records show that he served on active duty, in an Active Guard Reserve (AGR) status, as a member of the TXARNG, from
22 September 1981 through 21 September 1985.

7. The DD Form 214 prepared on the date of his separation, 21 September 1985, showed that he was released from active duty (REFRAD) under the provisions of chapter 4, National Guard Regulation 600-200, by reason of relief from AGR for good of the service.

8. On 2 October 1985, a correction to this separation document was issued that changed the authority for his separation entry to read “chapter 4, Army Regulation 635-200”, and the narrative reason for separation entry to read “expiration of term of service”.

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9. Subsequent to his REFRAD and the AGR program, he continued to serve in the TXARNG until 29 October 1992, at which time he was honorably discharged and transferred to the United States Army Reserve (USAR) Retired Reserve, in the rank and pay grade of sergeant first class/E-7 (SFC/E-7).

10. At the request of The Adjutant General of the State of Texas, the National Guard Bureau (NGB), Equal Opportunity (EO) Division, conducted an investigation into various complaints of EO discrimination filed by TXARNG Mexican-Americans through the American GI Forum of Texas. The investigation found there was a prima facie case of discrimination based on national origin.

11. The applicant’s complaint was reviewed as part of the EO investigation and the remedy recommended was that the TXARNG support an appeal to this Board to retroactively promote the applicant to master sergeant/E-8 (MSG/E-8), effective in 1988, on the same date that another soldier mentioned in the complaint was promoted. It also recommended that the applicant be provided the difference in pay between SFC/E-7 and MSG/E-8 for any paid training periods he completed.

12. In connection with the processing of this case, an advisory opinion was requested of and received from the NGB. It states that after a through review of the applicant’s complaint by the NGB EO office, it was determined that the applicant was discriminated against. The State of Texas supported an appeal to this Board for retroactive promotion of the applicant to MSG/E-8 as an appropriate remedy. On 15 November 2002, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond. To date, he had failed to reply.

CONCLUSIONS:

1. The Board carefully considered the applicant’s request for reinstatement in the Texas Army National Guard (TXARNG); promotion to SGM/E-9, active duty service credit for the period 22 September 1985 through 21 September 1997 with pay and allowances and NCOERs that cover this entire period; and retirement with full retired pay, and his stated reasons for those requests. However, the Board finds insufficient evidence to support his claim of impropriety in regard to his active duty separation or pertaining to any of the relief requested.

2. The evidence of record confirms that the narrative reason for separation contained in his original DD Form 214 that was prepared on the date of the applicant’s REFRAD, 21 September 1985, was incorrect. However, this entry was corrected shortly thereafter in a DD Form 215 issued on 5 October 1985.

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3. Lacking any evidence to the contrary, the Board presumes that the original narrative separation entry contained in the applicant’s 21 September 1985
DD Form 214 was the result of an administrative error, and it is clear this error was quickly corrected by the responsible officials. Therefore, the Board finds no injustice related to this corrected separation document.

4. The Board takes any allegation of bias seriously, and would not let stand any action that was the result of discrimination. However, it finds no evidence of prejudice that would support granting any of the relief requested by the applicant.

5. The evidence of record confirms only that the applicant’s discrimination complaint was substantiated for a period subsequent to his active duty service. The NGB EO investigation contains no indication that he was discriminated against while he was serving in an AGR status on active duty or that he was unjustly denied further active duty service.

6. The Board does find that the results of the NGB EO investigation do support the relief recommended and supported by the TXARNG. Therefore, the Board concludes it would be appropriate for The Adjutant General of the State of Texas to retroactively promote the applicant to MSG/E-8, effective on a date in 1988 that is determined appropriate based on the 1993 NGB EO investigation results.

7. The Board also finds that it would be in the interest of equity and justice to provide the applicant any back pay and allowances to which he is entitled based on this retroactive promotion and to show that he is eligible to receive retired pay in the rank and pay grade of MSG/E-8.

8. Although the Board has no authority to correct State ARNG records, governed under Title 32, the Board is of the opinion that in so far as the Department of the Army is concerned, it would be in the interest of justice to correct the TXARNG records of the individual concerned as recommended below.

RECOMMENDATION:

1. Insofar as records of the Texas Army National Guard are concerned, the Board recommends that The Adjutant General of the State of Texas correct the records of the individual concerned by:

a. retroactively promoting the individual concerned to MSG/E-8, effective on a date in 1988 determined appropriate based on the guidance contained in the 1993 NGB EO investigation;

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b. showing that he was transferred to the USAR Retired Reserve in the
rank and pay grade of MSG/E-8; and

c. providing him any back pay and allowances due as a result of these recommended actions.

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	AR2002077353
SUFFIX
RECON
DATE BOARDED	2003/03/04
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 191	110.0200
2. 310	131.0000
3.
4.
5.
6.