RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 March 2004
         DOCKET NUMBER: AR2003088155


         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Herbert O. Fry		Member
Mr. Richard T. Dunbar		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, in effect, that he be reinstated to his state Active/Guard Reserve (AGR) position in the Louisiana Army National Guard (LAARNG) and be allowed to complete his enlistment.

2. The applicant states he was denied due process and was improperly discharged. He contends that incorrect regulations were cited and applied in the discharge process, which deprived him of his due process rights.

3. The applicant provides several personal letters addressing issues in his case, correspondence with his Congressman, and some copies of documents from his Official Military Personnel File (OMPF).

CONSIDERATION OF EVIDENCE:

1. The Board does not have jurisdiction to reinstate the applicant to a state AGR position under Title 32, United States Code. However, questions relating to the applicant's status in the United States Army Reserve (USAR) are implied, therefore, it is appropriate to consider the case.

2. The applicant, a staff sergeant (E-6), originally entered active duty on 15 October 1976. Following 3 years active duty, 4 years in the Inactive Reserve, and approximately 15 months of no military status, he became active in the Reserve Components on 6 March 1984. Since then he has served in an active status in the USAR, and/or the Army National Guard (ARNG), until his release from active duty in 1999. He last reenlisted, on 13 March 1997, while in an LAARNG AGR status.

4. The record contains a copy of a 19 August 1998 memorandum outlining the applicant’s progress in the Alcohol and Drug Abuse and Prevention and Control Program (ADAPCP). It notes that the applicant originally started the program as a family member referral for his daughter in 1996. On 5 November 1998(?), his treatment program was converted to a command directed program due to his own alcohol abuse problems. The memorandum reports that the applicant successfully completed the residential treatment phase, 14 April 1997 to 30 May 1997, and follow-up out patient requirements. On 21 April 1998 he was returned fit for duty.

5. On 20 August 1998 a master sergeant (MSG) originated a Memorandum for Record (MFR). It states that because of problems with the applications of several recruits, combined with personal knowledge that the applicant had

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possibly violated the provisions of the ADAPCP program, the MSG had requested and received permission to have the applicant undergo a breath test to determine his blood alcohol content (BAC). The test was conducted at 10:00 AM and produced a .016 BAC result.

6. On 1 September 1998 the Commander, Recruiting and Retention Headquarters, LAARNG notified the applicant that he was recommending involuntary separation from the AGR by reason of unsatisfactory performance. The reasons the Commander cited were:

a. neglect of duty in that he failed to follow proper procedure in completing all enlistment documents prior to having recruits report to the processing center;

b. driving a Government Services Administration (GSA) vehicle after consuming alcohol; and

c. poor judgment for not being at the processing center at 05:30 AM when the recruits arrived to insure that they had everything necessary to complete their enlistment.

7. In a 15 September 1998 statement in his own behalf, the applicant contended that the incomplete forms did not impact on the recruitment of the individuals concerned. He continues that the breath test was not performed in accordance with the Army Regulation 600-85 (Army Substance Abuse Program) and could not be used against him.

8. On 16 October 1998 the applicant was notified that the Adjutant General (AG), LAARNG, had approved his involuntary separation from the AGR program effective 6 January 1999. The notification states he was to be separated in accordance with National Guard Regulation 600-5, paragraph 6-5 for substandard duty performance.

9. The applicant was separated from active duty and transferred to the LAARNG on 7 January 1999. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the reason and authority for discharge as unsatisfactory performance under Army Regulation 635-200, chapter 13. The applicant had a total of 8 years, 1 month, and 23 days of active duty service with 12 years, 8 months, and 8 days of inactive duty service. His Retirement Points Accounting System Summary (RPAS) shows that as of his Retirement Year Ending (RYE) 5 March 1998 he had 17 years, 0 months and 0 days of qualifying service.

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10. On 27 October 1999 the applicant was discharged from the LAARNG and transferred to the US Army Reserve (USAR) Individual Ready Reserve (IRR) effective 28 October 1999.

11. On 11 July 2000, the AG, LAARNG stated, in a letter to a Member of Congress, that the LAARNG had attempted to counsel the applicant prior to his release, to offer him other positions within the LAARNG, and had made numerous attempts to contact him since his release from the AGR Program to offer him another position. The applicant failed to respond to these attempts, and the LAARNG had no choice but to discharge him.

12. In a 14 September 2000 letter to a Member of Congress, the AG indicated that an administrative error resulted in the applicant's discharge from the Army National Guard as though he had been a typical ARNG soldier rather than a member of the AGR. However, unless otherwise unqualified for reentry, he could be transitioned into a unit in his geographic area to complete his military service as a traditional guardsman.

13. The applicant originally applied to the ABCMR in April 2001. In a 1 May 2001 letter he was advised that he had not exhausted all of his administrative relief by applying to Army Discharge Review Board (ADRB). That application was administratively closed and he was notified that his records would be transferred to the ADRB for action.

14. The ADRB noted that the applicant had been separated under the wrong regulation and that Army Regulation 135-178 should have been used. The ADRB directed that the narrative reason and authority for discharge be changed to Secretarial Authority under Army Regulation 135-178, chapter 4.

15. In a 27 February 2003 letter to his Congressman, the applicant stated that, if the proper procedures had been followed he would not have been discharged. He again requested assistance in being reinstated to his AGR position retroactive to 6 January 1999 and allowed to complete the remainder of his AGR enlistment through 3 May 2003.

16. This correspondence was forwarded to the Board and inadvertently identified as a request for reconsideration. The applicant and/or his Congressman have submitted a copy of his original DD Form 149 and the identical supporting material on at least six occasions.

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17. Army Regulation 135-178 sets forth the policy and procedures for the administrative separation procedures for ARNG and USAR enlisted soldiers. Chapter 9, as then in effect, applies to unsatisfactory performance and specifies that the notification procedure provided in chapter 3 shall be used, unless the soldier has more that 18 qualifying years for Reserve retired pay at age 60. Chapter 3 provides for the use of a notification format that informs the individual of the right to consult with counsel, to have an appointed counsel and to obtain copies of pertinent separation document.

18. Army Regulation 135-178, chapter 4, as then in effect, sets forth the conditions under which enlisted members may be separated for the convenience of the Government. Paragraph 4-4 states that separation of enlisted members for the convenience of the Government is the prerogative of the Secretary of the Army.

19. It is the established policy of the ADRB that when a correction to the separation authority is warranted that they will use the prevailing regulation related to separation under the provisions of Secretarial Authority.

20. Army Regulation 600-85 sets forth the policy and procedures for the Army Alcohol and Drug Abuse Prevention and Control Program for all Active Army, Army National Guard, and Army Reserve personnel. In pertinent part it states a soldier may be declared an alcoholic rehabilitation failure if after having completed the proscribed rehabilitation program they are involved in any alcohol related incidents. Specifically paragraph 1–3 requires initiation of separation proceedings for soldiers who are considered a rehabilitation failure. Paragraph 4–8c states that only under extraordinary conditions will the soldier be reenrolled in the program.

DISCUSSION AND CONCLUSIONS:

1. There is no indication that the applicant responded to offers of another position in the LAARNG. With his failure to accept another position in the LAARNG, it was proper to discharge him and transfer to the USAR IRR. Therefore, there is no indication that the applicant was unjustly discharged from the LAARNG.

2. The applicant had completed the ADAPCP program not more than six months prior to the incident that resulted in the loss of his AGR position. Since, one aspect of the incident concerned operating a motor vehicle after consuming alcohol, the applicant could have been declared an alcohol rehabilitation failure regardless of the percentage of alcohol found in his blood.

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3. The issue of the use of the improper regulation in the applicant’s release from the AGR position has been addressed and favorably resolved by the ADRB. There is no indication that the applicant disagrees with their findings, therefore no additional action is warranted on this issue.

4. As previously noted, the Board does not have the authority to reinstate the applicant to his position in the AGR or as a member of the LAARNG.


BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__MDM__ __HDF__ __RTD __ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  Mark D. Manning_________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088155
SUFFIX
RECON
DATE BOARDED	20040316
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	Reinstatement to AGR title 32 NGB position
2.
3.
4.
5.
6.