RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050004513


      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             |
|     |M4. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be voided and
that he be transferred to the Retired Reserve.

2.  The applicant, in effect, defers any statement to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's record be corrected to show that
he was transferred to the Retired Reserve.

2.  Counsel states, in effect, that had the applicant been properly advised
of his options he would have elected transfer to the Retired Reserve.
Counsel contends that improper notification by the command and inadequate
advice and counsel from his military lawyer resulted in his discharge.

3.  Counsel provides copies of the command's 28 June 2001 memorandum
notifying the applicant of initiated elimination proceedings, the
applicant's 21 August 2001 response and election of rights, the Assistant
Staff Judge Advocate's (SJA's) review and the Record of Proceedings of the
Army Board for Correction of Military Records (ABCMR) consideration of the
applicant's earlier request to change his discharge to disability
retirement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR as Docket Number AR2003097050, on 8 April 2004.  While the current
case is not a reconsideration, it may be helpful to incorporate the earlier
Record of Proceedings into this one.

2.  The applicant, a career Army Reserve (USAR) noncommissioned officer
(NCO) with approximately 29 years service, was serving as a master sergeant
when separation processing was initiated on 28 June 2001 for medical
unfitness due to a non-duty related medical condition.

3.  The memorandum from his battalion commander stated that he had been
found not medically qualified, that he was eligible for but had elected not
to request transfer to the Retired Reserve.

4.  The memorandum inadvertently informed him that he was eligible to
appear with counsel before an administrative separation board.  The
memorandum included an election of rights form, on which the applicant
indicated that he desired to appear before an administrative board.  The
applicant's military counsel, a Judge Advocate General's Corps (JAG)
officer, counter-signed the endorsement on 21 August 2001 with a
handwritten signature block that identified him as "Defense Counsel."

5. On 22 October 2001 the Assistant SJA reviewed the separation package for
sustentative and legal sufficiency and concluded that it was legally
sufficient.  The commanding general directed, in an undated memorandum,
that the applicant be separated with an honorable discharge.

6.  As noted in the previous Record of Proceedings, the Assistant SJA also
noted that the applicant had declined to request transfer to the Retired
Reserve.

7.  On 5 February 2002 the applicant was discharged, effective 1 November
2001.

DISCUSSION AND CONCLUSIONS:

1.  Although the battalion commander and the Assistant SJA asserted that
the applicant had declined to request transfer to the Retired Reserve,
there is no document in the available records to substantiate when this
occurred.

2.  Furthermore, regardless of when it occurred, the applicant had been
informed that he was entitled to a board of officers and his response to
that notification had been countersigned by a "Defense Counsel" whom the
applicant could have reasonably expected would represent his best
interests.

3.  Nevertheless, without any other communication, the applicant was
summarily separated on 5 February 2002.  Had he been correctly notified and
counseled, he would have undoubtedly chosen to be transferred to the
Retired Reserve.

4.  As noted in Consideration of Evidence paragraphs 15 through 17 of the
previous Record of Proceedings, the applicant is entitled to the same
material benefits as if he had been transferred to the Retired Reserve.
However, through no fault of his own, the current situation creates an
injustice in that it deprives him of the satisfaction and prestige of being
a member of the Retired Reserve.

5.  Therefore, in the interest of justice it would be appropriate to void
his              1 November 2001 discharge and to transfer him to the
Retired Reserve.
BOARD VOTE:

___LDS__  _RMN __  _REB___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
voiding the 1 November 2001 discharge and transferring him to the Retired
Reserve.




                                  __     Linda D. Simmons________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004513                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060112                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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