RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 February 2004
         DOCKET NUMBER: AR2002082870


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Robert J. Osborn		Member
Mr. Lester Echols		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 he be transferred to the Retired Reserve with proper benefits and reversal of his New Mexico Army National Guard (NMARNG) 1999 Selective Retention Board (SRB).

2. The applicant states that the 1999 SRB separated him from active duty Army Guard/Reserve (AGR) status under Title 32 with impending graduation from college. He also states that they mismanaged documentation or purposely misplaced them to support his separation.

3. The applicant provides copies of his: college transcript; Bachelor of Science Degree from Regents College; cover letter; letter from the Department of the Army Inspector General (DAIG); and a copy of his rebuttal to the DAIG's letter.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on 24 September 1999, the date of his separation. The application submitted in this case is dated 20 November 2002.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant's military records show he was appointed as a second lieutenant (2LT/012) on 12 June 1982 in the NMARNG, with prior military service. On 24 October 1983, he was appointed as a Reserve commissioned officer in the rank of 2LT/0-2.

4. On 2 February 1995, the New Mexico Department of Military Affairs notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant’s application at age 60 (20-Year Letter).

5. He was ordered to active duty in the AGR on 1 July 1996.

6. He was promoted to major (MAJ/0-4) effective 29 August 1996.




7. The available records indicate that the applicant was considered and not selected for retention in the NMARNG by the State SRB in June 1998. The evidence also indicates that he was selectively retained for 1-year by the SRB convening authority for the purpose of completing his required civilian education, a bachelor's degree.

8. The applicant's records contain an Officer Evaluation Report (OER) for 8 months of his duties as a battalion operations officer with a through date of 31 May 1998. The rater placed a 2 in the "Seeks self-improvement" block with a corresponding comment that he must complete civilian education now. The rater also marked the "Promote with Contemporaries" block in Part Vd for promotion potential. The intermediate rater comments note that the applicant does not readily subscribe to command guidance and has trouble following instructions or directions. The senior rater placed the applicant in the third block for potential with comments that he requires close supervision for other than routine work and needs help to identify courses of action. The OER was accepted by the Department on 31 August 1998.

9. On 13 April 1999, the applicant submitted a letter to the 1999 SRB. He stated that he was counseled by two general officers and was informed that the reason for his prior designation as a 1-year selectee was due to his civilian education. He was informed by Regents College on 13 April 1999, that he had successfully completed the remaining requirement to graduate. He stated that additional accomplishments had taken place and that his goal was to enroll in the Command and General Staff College Course (CGSC) and later pursue his Masters Degree.

10. The letter the applicant received from Regents College stated that he appeared to have satisfied the requirements for a Bachelor of Science degree and his records were forwarded for final review. If all of his requirements were satisfied, and the board of trustees concurred, his degree would be conferred on 18 June 1999.

11. He was again considered for retention but not selected by the 1999 SRB. The 1999 SRB convened on 8 June and adjourned on 10 June 1999. It appears that he was not found qualified for retention based on the lack of required civilian education. He was required to be separated no later than 24 September 1999.

12. The applicant provided a copy of his Bachelor of Science Degree from Regents College, dated 18 June 1999, and a copy of his transcripts with a conferment date of 18 June 1999.

13. On 22 July 1999, orders were published releasing the applicant from the NMARNG with assignment to the Army Reserve Control Group (Reinforcement) effective 24 September 1999, in the rank of major.
14. The applicant provided a copy of a letter from the Chief, Investigations Divisions, DAIG. The letter was a response on behalf of President Bush concerning an earlier letter from the applicant to the President claiming that he had been a victim of reprisal in his nonselection for retention by the 1999 NMARNG SRB. The letter stated that a DAIG inquiry had been conducted and there was no credible evidence that the President of the 1999 NMARNG SRB had reprised against him by recommending his release from the NMARNG. There also was no credible evidence that the President of the 1999 NMARNG SRB had any knowledge that the applicant had been one of over 50 personnel who had provided a statement to the DAIG during a 1994 investigation in the ARNG.

15. The applicant replied to the DAIG's letter on 19 November 2002. He stated that he was counseled on 18 June 1998 regarding his education deficiency and that his cover letter and transcript was forwarded to the SRB. However, the SRB either ignored or purposely removed these documents that were approved prior to the board. On 13 May 1999, the NM Adjutant General presented him with a Symbolic Range Diploma signed by a general officer. He had met the requirements and was counseled prior to the SRB convening. He remains convinced that he is a victim of systematic reprisal and has endured several personal and financial problems due to his discharge.

16. The applicant's Summary of Retirement Points shows that he has completed 24 years of qualifying service for retirement purposes.

17. National Guard Regulation 635-102 provided guidance and procedures for conducting the officer SRB. It prescribes policies and procedures for establishing and conducting selection boards used in the ARNG program for selective retention of officers and warrant officers beyond 20 years of qualifying service for retired pay. The policy included providing for progression of qualified officers, by retaining the best officers for the comparatively few higher-level positions, by providing a career incentive, and by providing the opportunity to serve beyond 20 qualifying years with advancement to higher ranks at the peak years of an officer’s effectiveness. It also states that orders would be published separating individuals citing this regulation and would be effective within 60 days from the issuance of the nonselection letter. Unless the officer elects in writing to be assigned to the Retired Reserve, they will be transferred to the jurisdiction of the Army Human Resources Command-St. Louis (AHRC) with assignment to the USAR Control Group (Reinforcement).

18. Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
19. Title 32, United States Code, Sections 101 and 502(f) provide for the members of the Army National Guard of the States and Territories to be ordered to "Full-time National Guard duty." Title 32 defines "Full-time National Guard duty as training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States in the member’s status as a
member of the National Guard of a State or Territory. Personnel who are ordered to Full-time National Guard duty under Title 32 for the purpose of organizing, administering, recruiting, instructing, or training the Army National Guard of the United States are administered by the respective States and territories are members of the Active/Guard Reserve (AGR) Program."

DISCUSSION AND CONCLUSIONS:

1. The applicant was considered and not selected for retention by the 1998 SRB due to civilian education deficiency. He was removed from the nonselect list and given the opportunity to complete his civilian education requirement.

2. The applicant was counseled on his deficiency and completed his education requirements after the convening date of the 1999 SRB. He was likely found not qualified for retention based on the lack of required civilian education. It is also noted that his OER with a through date of 31 May 1998 mentioned several areas of poor duty performance.

3. The applicant was properly evaluated for retention in the NMARNG under the proper authority and was not selected for retention. An inquiry was conducted by the IG and his nonselection based on reprisal was found to be unwarranted.

4. According to regulation, all officers, in the applicant's case, were scheduled for review by the SRB's, and the action was accomplished based on pertinent regulation. The applicant was discharged and assigned to the USAR Control Group (Reinforcement). Therefore, there is no basis for reversal of the NMARNG's 1999 SRB's decision in the applicant's case.

5. The applicant's was qualified for transfer to the Retired Reserve as indicated by the issuance of a 20-Year Letter and had completed 24 years of qualifying service for retirement purposes. However, there is no evidence in the applicant's record to show that he requested transfer to the Retired Reserve in writing.

6. Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records by revoking his discharge of 24 September 1999, and assigning him to the Retired Reserve effective the same date.

BOARD VOTE:

__jl____ ___ro___ __le____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected as appropriate by amending the 24 September 1999 transfer from the NMARNG to the Army Reserve Control Group (Reinforcement) to show that he was transferred to the Retired Reserve effective 24 September 1999.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to reversal of the NMARNG's 1999 SRB's decision.




                  ___Joann Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002082870
SUFFIX
RECON
DATE BOARDED	20040212
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1990924
DISCHARGE AUTHORITY	AR 635-100
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.