RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20050012803


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


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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:

The applicant, in effect, defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be restored in the
Alabama Army National Guard (ALARNG) and the United States Army Reserve
(USAR) with all rights, privileges and benefits; including, but not
necessarily limited to, promotional opportunities, active and inactive duty
pay, allowances and retirement points as if the 1999 administrative
separation board (ASB) had not occurred.  Counsel also requests that the
applicant be awarded back pay and otherwise made whole from the loss
suffered as a result of termination from his civilian employment as a
military technician with the ALARNG.  The ABCMR has no jurisdiction in this
issue and it will not be further discussed.

2.  Counsel states, in effect, that the ALARNG insists that it has
accomplished everything that the previous ABCMR case required it to do and
that the applicant must apply here for any additional relief.

3.  Counsel provides copies of the original DD Form 149 (Application for
Correction of Military Records) and Record of Proceedings, correspondence
from and to a Member of Congress, the undated ASB findings and
Recommendations and letters from the ALARNG.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a dual status technician, was a career ALARNG
noncommissioned officer and civilian employee.  A 1999 ASB found that he
had committed misconduct by abusing marijuana and recommended he be
separated from the ALARNG with an honorable discharge.  Subsequently, he
was separated from the ALARNG with an honorable characterization of service
and transferred to the USAR Control Group (Retired Reserve) on 31 March
1999.

2.  This Board in AR2002074391, on 28 October 2003, found the ASB had not
been conducted in compliance with the governing directive, Army Regulation
135-178 (ARNG and USAR Enlisted Administrative Separations) because of
ineffective counsel and undue command influence.  The Board recommend that
the ALARNG be advised that, in the interest of justice, the 4 December 1999
ASB should be set aside and a new hearing granted.  The Secretarial
Authority approved the recommendation.

3.  According to counsel, the 1999 ASB and subsequent actions were set
aside and the applicant was restored in the ALARNG.  On 31 August 2004
applicant voluntarily extended his enlistment to 31 August 2005.  On 20
October 2004, a new ASB found no misconduct and recommended that the
applicant be retained. The ASB results were approved by the state adjutant
general.

4.  A letter from the Adjutant General of the ALARNG to a Member of
Congress indicates that "we complied by revoking [the applicant's]
discharge orders and assigned him to B Company, 31st Support Battalion…In
accordance with the ABCMR ruling a new Administrative Separation Board…at
the request of his attorney was delayed until September 17, 2004."

5.  The applicant voluntarily requested transfer to the Retired Reserve,
the request was approved and the applicant was discharged from the ALARNG
and transferred to the Retired Reserve on 4 April 2005.

6.  The documents used to restore the applicant to duty in the ALARNG are
not contained in the available records.  A statement of retirement points
shows that, subsequent to the 1999 transfer to the Retired Reserve the
applicant has only been credited with three membership retirement points
and no inactive duty or active duty retirement points.

7.  Long before the original ASB, a memorandum prepared on 10 March 1997 by
the ALARNG on behalf of the Chief, National Guard Bureau had notified the
applicant that he was eligible for retired pay at age 60 (a 20-Year
Letter).

8.  The applicant's 10 April 1999 statement of retirement points shows that
for the period of time between the normal end of his retirement year (RYE)
on 11 January 1999 and his separation on 31 March 1999 he earned 10
inactive duty retirement points (IDT) and 3 membership (MEM) retirement
points for a total of 13 retirement points.

9.  In the three full RYEs immediately preceding the ASB he earned the
following retirement points:

      a.  RYE 11 January 1999 – 41 IDT, 15 membership (MEM) retirement
points, 15 active duty retirement points (AD) = 71 total retirement points;

      b.  RYE 11 January 1998 – 44 IDT, 15 MEM, 29 AD = 88 total; and

      c.  RYE 11 January 1997 – 46 IDT, 15 MEM, 30 AD = 91 total.

10.  The above annual figures yield an average of 83.3 retirement points
per RYE. This should be determined as an average of 48 IDT, 15 MEM and 20
AD points.

DISCUSSION AND CONCLUSIONS:

1.  The previous ABCMR found the ASB improper and the Secretarial Authority
approved the recommendation to redo the ASB.  The ALARNG held a new ASB and
reversed the previous decision and recommended retention.  The TAG approved
that Board's finding and recommendation.  However, justice has not been
served because the applicant was still deprived of the pay and retirement
points he should have received.

2.  The applicant had extended his enlistment and later voluntarily
requested transfer to the Retired Reserve.  His request was approved and he
was transferred to the Retired Reserve.  Although all of the documentation
is not available, it must be presumed that the applicant's transfer to the
Retired Reserve was voluntary.  Nevertheless, considering all the facts and
circumstances of the case, he was unjustly deprived of pay and points by
the original ASB and the ensuing delays.

3.  Given the Board's prior decision, the subsequent ASB, and the TAG's
action, he should be made whole by granting an antedated reenlistment
contract if appropriate; restoring any promotion consideration opportunity,
awarding him pay and retirement points at an average rate of 83 annually
for RYEs ending 11 January 2000, 2001, 2002, 2003, 2004, 2005 and the
partial year ending on his transfer to the Retired Reserves on 4 April
2005.

BOARD VOTE:

_WDP___  _JCR___  __KSJ___  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:

      a.  restoring any promotion consideration opportunity as appropriate
and, if selected, retroactively promoted and paid.


      b.  awarding him pay and retirements points as follows:


             (1)  RYE 11 January 2000 – 48 IDT, 15 MEM, 20 AD = 83 Total;


             (2)  RYE 11 January 2001 – 48 IDT, 15 MEM, 20 AD = 83 Total;


             (3)  RYE 11 January 2002 – 48 IDT, 15 MEM, 20 AD = 83 Total;


             (4)  RYE 11 January 2003 – 48 IDT, 15 MEM, 20 AD = 83 Total;


             (5)  RYE 11 January 2004 – 48 IDT, 15 MEM, 20 AD = 83 Total;


             (6)  RYE 11 January 2005 – 48 IDT, 15 MEM, 20 AD = 83 Total and
      ;


             (7)  12 January 2005 through 4 April 2005 – 12 IDT, 3 MEM, 0 AD
      = 15 Total.





                                  __   _William D. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012803                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]