RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 December 2003
         DOCKET NUMBER: AR2002077734


         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. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Eloise C. Prendergast		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his separation from active duty in an Army Guard/Reserve (AGR) status be voided; that he be reinstated in an AGR status as a recruiter with the Indiana Army National Guard (INARNG); that he receive all lost military wages from the date of his separation to the date of his reinstatement; and that he be given any promotion consideration that he may have lost due to his separation.

2. The applicant states that he believes his separation was the result of public political scandal, not any violation of laws or regulations. His separation from AGR status was subjective and prejudicial because an arbitrary number of "bad" enlistments determined who among the 15 recruiters would remain on active duty with no punishment and who would be separated.

3. The applicant further states that his Noncommissioned Officer Evaluation Reports (NCOER) never reflected poor job performance and an Administrative Reduction Board determined that there was insufficient evidence to recommend that he be reduced for dereliction of duty or misconduct. The Adjutant General (TAG) of Indiana approved those findings. He goes on to state that his separation was in violation of National Guard Regulation (NGR) 600-5 which requires separation for "cause." He was never punished administratively or under the Uniform Code of Military Justice (UCMJ).

4. The applicant provides copies of the investigating officer's (IO) report under Army Regulation 15-6, the findings and recommendations of the Administrative Reduction Board, his administrative separation documents, copies of documents from his military records, and numerous news articles concerning the INARNG recruiting violations.

CONSIDERATION OF EVIDENCE:

1. The applicant was separated from active duty as an armor crewman effective 27 June 1999 in the pay grade of E-5 and transferred to the Army Reserve. He entered active duty in an AGR status with the INARNG under Title 32, United States Code (USC), section 502(f) as a recruiter on 23 August 1999.

2. On 12 April 2001, the Chief of Staff, Indiana Military Department, appointed an IO pursuant to AR 15-6 to investigate the field enlistments of the applicant's recruiting detachment to determine if prior service enlistees were administered medical examinations at authorized facilities by an authorized physician during the period of 1 October 1999 through 31 March 2001.


3. The IO conducted his investigation from 16 through 27 April 2001. The report of proceedings contained 11 separate findings as follows:

         a. Of 1,197 accessions processed during the subject time frame, 45 had no physicals on record, 146 contained physicals conducted at the Naval Reserve Center, and a Medical Corps Naval Reserve first lieutenant had signed 129 of those physicals.

         b. The named Medical Corps Naval Reserve first lieutenant has never conducted physical examinations at the Naval Reserve Center.

         c. A review of records at the Naval Reserve Center showed that none of the 129 enlistees had ever been there.

         d. Discussions with 16 of the enlistees showed that they had never gone to the Naval Reserve Center for a physical.

         e. The recruiters had lied to the IO concerning those physical examinations.

         f. The recruiters admitted to swearing in enlistees into the INARNG knowing that physical examinations and other documents were missing and turning in the incomplete packets to their recruiter team commander.

         g. There was no collusion between the recruiters and the enlistees.

         h. The Naval Reserve Center was an authorized facility but 129 fraudulent enlistments resulted from missing physicals and 21 recruiters received erroneous credit for these enlistments.

         i. The IO found specifically that 14 of the 21 recruiters investigated, including the applicant, had directly participated in one or more fraudulent enlistments. The IO further noted that the applicant had not lied about his enlistment activities, as had other recruiters. The recruiting team commander had knowingly processed 116 fraudulent enlistments with missing documents and further processed those enlistment packets by adding fraudulent documents. It was further noted that this recruiting team commander had brought undue pressure on his recruiters and set a terrible example.

         j. The IO discovered at the completion of his investigation at least nine additional fraudulent enlistments and stated that this atrocity continues and has existed since at least 1997.

         k. The IO believed that the full extent of fraudulent enlistments will never be known nor will the damage caused by the recruiters.
4. In view of the above findings the IO made six separate recommendations as follows:

         a. Individual enlistees who have no evidence of completing a physical examination need to be scheduled for a retention physical.

         b. Implement tighter review procedures at the recruiting detachment.

         c. Terminate the Naval Reserve Center as an authorized facility for INARNG physical examinations.

         d. Missing physical examinations and other documents need to be located and placed in the records.

         e. Implement tighter procedures for inputting enlistments into the automated database.

         f. The IO made 22 separate recommendations concerning the 21 recruiters and the recruiting team commander. The applicant, with 13 fraudulent enlistments, and one other E-5 with 15 fraudulent enlistments were recommended for judicial punishment and/or termination from their AGR assignment. The remaining 12 recruiters recommended for judicial punishment and/or termination from their AGR assignment were in pay grades E-6 or E-7. The recruiting team commander, a master sergeant, was recommended for immediate judicial punishment and termination from his AGR assignment. He was later convicted by court-martial of forgery and violating an order.

5. On an unknown date the Chief of Staff, Indiana Military Department, approved the findings and recommendations without comment. It was later reported that only the recruiting team commander and four, including the applicant, of the 12 recruiters recommended for judicial punishment and/or termination from their AGR assignment were recommended for involuntary separation.

6. On 18 June 2001, the commander of the State Area Command (STARC), Recruiting and Retention Detachments, issued two memorandums to the applicant. The first informed the applicant that he was being recommended for involuntary separation from his AGR assignment for dereliction of duty and misconduct for knowingly processing enlistments with missing physical examinations as documented by the AR 15-6 investigation. He was provided the opportunity to provide written rebuttal within 15 days and to seek military and/or civilian counsel.




7. The second 18 June 2001 memorandum notified the applicant of the commander's intent to reduce him in grade to E-4 for dereliction of duty and misconduct as documented by the AR 15-6 investigation. He was provided the opportunity to provide written rebuttal within 30 days, to request appearance before a reduction board, and to seek military and/or civilian counsel. The applicant acknowledged receipt of both memorandums on 18 June 2001.

8. On 25 June 2001, the applicant was assigned military counsel for the proposed separation action and the reduction board. On 2 August 2001 the applicant and his appointed counsel signed a memorandum of rebuttal to the commander of the STARC, Recruiting and Retention Detachments, concerning the proposed involuntary separation. The rebuttal included four statements of support from his chain of command including a lieutenant colonel executive officer, a major who was a recruiting area commander, his current recruiting team commander, and the readiness NCO of the unit the applicant supported. All highly praised the applicant's work and recommended he be retained.

9. The rebuttal included a separate signed statement from the applicant noting that he did not falsify or forge any documents or physical examinations. The local procedure allowed use of prior physical examinations for enlistment of prior service personnel. Even though he was taught differently in recruiting school, he was instructed to follow the local procedure. He requested to be retained as a recruiter.

10. In the rebuttal, counsel noted irregularities in the conduct of the AR 15-6 investigation with respect to the gathering of statements. He states that the applicant's statements to the IO were coerced because the IO promised no separation actions against him if he provided a second statement to replace his first statement. The warrant officer who assisted the IO had also falsely told the applicant that the recruiting team commander had implicated the applicant in order to get a second statement from the applicant to implicate the recruiting team commander.

11. Counsel further stated that the applicant was neither derelict in his duties nor guilty of misconduct. An attached list of enlistment packet problems for all nine statewide recruiting teams showed over 80 enlistments between March and July 2001 had incomplete enlistment documents including valid physical examinations. This was proof that prior service enlistment packets continued to be processed and loaded to the database without a physical examination as standard policy.

12. An 18 November 1994 handwritten procedure, signed by a chief warrant officer five, instructed statewide data input stations to use a dummy date for enlisted accessions when the physical examination was missing or incomplete.
This was clearly not the fault of the individual recruiters and not evidence of dereliction of duty. Counsel stated that the recruiting team commander was in charge and set the standards for the recruiters on what was required for an enlistment packet. The applicant and others were counseled when they questioned procedures.

13. Counsel goes on to state that there was no evidence of misconduct by the applicant. Someone forged a doctor's name on physical examinations and placed them in the enlistment packets. The applicant did not conduct this forgery nor was he accused of this misconduct that led to the fraudulent enlistments.

14. Counsel points out that NGR 600-5, which governs involuntary separation of AGR soldiers, provides guidance to commanders considering such action. The first step described in the process is a counseling statement or a letter of reprimand to the AGR soldier as appropriate reinforcement for poor duty performance or behavior problems. The regulation further states that normally, a counseling statement or letter of reprimand will be documented in the soldier's record before initiating separation action. This would have been appropriate action for the applicant. The regulation also discusses seven factors for commanders to consider when contemplating separation action. Although the applicant had several questionable enlistment packets, he did not commit fraud, but followed stated procedures. It was clear that he is a qualified recruiter and wants to continue in that position. Under proper leadership he could and would succeed.

15. On 19 September 2001, the applicant formally requested a reduction board. On 26 October 2001 the TAG of Indiana at that time notified the applicant that he would be involuntarily separated from his AGR position effective 31 January 2002 based on dereliction of duties in accordance with NGR 600-5, paragraph
6-5. The memorandum did not address the written rebuttal provided by the applicant and counsel on 2 August 2001.

16. The Administrative Reduction Board met on 8 December 2001 and adjourned on 9 December 2001. A total of ten respondents represented by military counsel went to the Administrative Reduction Board. The board findings and recommendations showed that two respondents were found guilty of dereliction of duty and misconduct, and the other eight respondents, including the applicant, were found not guilty of dereliction of duty and misconduct. The two found guilty were recommended for reduction in grade and the eight found not guilty were recommended to have no action taken. On 17 January 2002, the applicant was informed that the appointing authority, the new Indiana TAG, had approved the Administrative Reduction Board report of proceedings and no further action would be taken.


17. On 11 January 2002, separation orders were issued releasing the applicant from AGR status effective 31 January 2002, with a separation code of LHJ, unsatisfactory performance. The approval authority is shown as the same Indiana TAG that also approved the findings and recommendations of the Administrative Reduction Board for the applicant that determined he was not derelict in his duties or guilty of misconduct.

18. The applicant's military counsel sent a request for reconsideration of involuntary separation to the Indiana TAG on 15 January 2002. Counsel noted to the TAG that the applicant's separation action was based on the AR 15-6 investigation. The Administrative Reduction Board saw the same evidence and heard testimony from the convening authority and the IO and concluded that there was insufficient evidence to support the allegations of dereliction of duty or misconduct. There is no evidence of record or evidence presented by the applicant that this request was responded to by the Indiana TAG.

19. The applicant's NCO Evaluation Report (NCOER) for the period August through November 2000 shows that he received a yes response for all NCO values. For his responsibilities it was noted that he had exceeded his assigned mission, conducted himself with exemplary professionalism, and his performance level exceeded that of his peers.

20. The applicant's NCOER for the period December 2000 through June 2001 was a relief for cause report and shows that he again received a yes response for all NCO values with the added comments that he was dedicated to improving the strength posture of the State and always followed orders without question. For his responsibilities it was noted that he had achieved 115 percent of his mission, was technically proficient, always set the desired example, and had outstanding dedication to mission accomplishment. It also stated that he had been notified of the reason for relief. It is noted that the reviewer for this relief for cause NCOER, which contains no derogatory information, is the same commander that recommended his separation from AGR status and reduction to pay grade E-4 based on the AR 15-6 investigation.

21. Effective 31 January 2002, the applicant was separated for unsatisfactory performance from his AGR position under authority of NGR 600-5, paragraph
6-5. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service as honorable with a separation code of LHJ. Upon his release from active duty he reverted to a unit member of the INARNG.

22. In the processing of this case an advisory opinion was provided by the National Guard Bureau (NGB). The opinion notes that the AR 15-6 investigation was limited to the recruiting NCOs with no mention of the officer ranks who established policy and had overall responsibility for recruiting matters. The opinion also noted the apparent subjective nature of the decision on who should be separated for dereliction and misconduct. It appeared that an arbitrary number of nine bad enlistments was the cutoff for involuntary separation actions versus no action taken.

23. The NGB opinion further highlights the disparity of actions taken against the applicant when the same evidence of the AR 15-6 investigation failed to persuade the Administrative Reduction Board that he was guilty of dereliction of duty or misconduct. It is clear that that were ethical questions concerning how the investigation was conducted, how institutionalized the practice of accepting incomplete enlistment packets was, and who may have actually been behind this practice.

24. The NGB recommended approval of the applicant's request to void his discharge of 31 January 2002, to reinstate him to his former position as a recruiter with AGR status, to provide him back pay and allowances, and to review his records for any promotion consideration he may have been denied based on his removal from AGR status. The NGB was clearly convinced that since the evidence did not support his reduction in grade for dereliction of duty and misconduct, there was not sufficient evidence to discharge him from an AGR status for cause. The applicant concurred with the advisory opinion on 23 June 2003.

25. Army Regulation 15-6 provides the procedures for investigations not provided by other directives. The regulation provides that when adverse administrative action is contemplated based on the results of the investigation the appropriate military authority must observe minimum safeguards before taking final action. Those safeguards are to notify the person in writing of the proposed adverse action, give a reasonable opportunity to reply in writing and submit relevant rebuttal material, and provide a review and evaluation of the rebuttal.

26. NGR 600-5 provides the AGR policy for the ARNG. Paragraph 6-5 provides the separation for cause procedures and states that the State TAG is the approval authority. The guidelines provide that a counseling letter or letter of reprimand will be initiated by a supervisor when the manner of performance makes such action appropriate. Normally counseling or a letter of reprimand will be documented before initiating involuntary separation action.

DISCUSSION AND CONCLUSIONS:

1. The 26 October 2001 memorandum of involuntary separation action to the applicant by the former Indiana TAG failed to address his review of the 18 June 2001 recommendation for separation, the applicant's and counsel's rebuttal and supporting documentation, or even the pertinent AR 15-6 investigation. This separation memorandum also does not address such issues as the seriousness of the issues raised or the applicant's potential for further service. It cannot even be determined if the rebuttal to the separation action was ever reviewed by this TAG.

2. On 17 January 2002, the applicant was informed that the appointing authority, the new Indiana TAG, had approved the Administrative Reduction Board report of proceedings and no further action would be taken since the recommendations stated that the applicant was found not guilty of dereliction of duty and misconduct.

3. The 11 January 2002 AGR separation order for the applicant has as the approval authority the same new Indiana TAG that approved the findings and recommendations of the administrative reduction board stating that no further action would be taken since the recommendations stated that the applicant was found not guilty of dereliction of duty and misconduct. This clearly appears to be incongruent.

4. Nowhere in the applicant's separation process can it be determined that he was afforded the minimum safeguard described in Army Regulation 15-6 that his rebuttal was received, reviewed, and considered by appropriate officials prior to the final determination.

5. The NGB opinion clearly states that the separation of the applicant was purely subjective and not well supported by the limited scope of the investigation. The opinion noted that this was borne out by the findings of the Administrative Reduction Board and has recommended this Board provide full relief to the applicant.

6. It appears that there is sufficient evidence of error and injustice in the applicant's separation from his AGR status to recommend that his separation from his AGR status be revoked, and of no force or effect.

7. By revoking the applicant's separation from his former AGR status, he is entitled to be returned to an appropriate AGR position, to be paid back pay and allowances from the date of his now revoked separation to the date of his return to an AGR status, and entitlement to any promotion consideration he may have been denied based on the termination of his AGR status.

8. It would also be appropriate to expunge any and all records relating to his involuntary separation from his military records to include changing the reason for submission of his NCOER for the period December 2000 through June 2001 to read "Change of Rater" versus "Relief for Cause" and removal of the statement "The rated NCO has been notified of the reason for relief".



BOARD VOTE:

_MDM___ _ELP__ _RJW____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends, insofar as records of the Indiana Army National Guard are concerned, that the Adjutant General of the State of Indiana correct the records of the individual concerned:

         a. by revoking his 31 January 2002 separation from an AGR status;

         b. by removing from his records all documents and references to his separation of 31 January 2002;

         c. by returning him to an appropriate AGR position with entitlement to all pay and allowances from his now revoked separation of 31 January 2002 to the date of his reinstatement to an AGR status;

         d. by amending his NCOER for the period December 2000 through June 2001 to show the reason for submission as "Change of Rater" versus "Relief for Cause" in block Ig. and removing the comment "The rated NCO has been notified of the reason for relief." from block IVf.; and

         e. by reviewing his records for any missed promotion opportunity that may have resulted from his now revoked separation and modified NCOER.




                  __Mark D. Manning_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077734
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	110.03
2.	111.02
3.	135.03
4.
5.
6.