RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050013466


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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, removal of his 2002 New Mexico Army
National Guard (NMARNG) discharge for misconduct.

2.  The applicant states, in effect, that he was improperly discharged for
misconduct on 31 August 2002.  He feels that the discharge was an injustice
to him.  Improper separation procedures in accordance with National Guard
Regulation 600-5, Army Regulation 135-18, and Army Regulation 135-178 were
used.  There was improper utilization of the separation authority.  He was
separated without counseling, rehabilitation, or action under the Uniform
Code of Military Justice.  There was a lack of supporting documentation for
such separation.  He further states that he was advised that he was not
authorized any type of appeal in his case.

3.  The applicant also states that on 25 March 2002, he received a
memorandum from The Adjutant General (TAG) of New Mexico (NM) for selection
for retention under Army Regulation 135-178.  On 12 April 2002, he received
a memorandum on revocation of his security clearance.  Paragraph 4 stated
that he would be placed in a position that was commensurate with Army
Regulation 135-18, Table 2-1, Rule J, stating that he must possess a valid
security clearance as required for the Active Guard Reserve (AGR) duty
position.  On 1 August 2002, he was notified of his commander's
recommendation for his removal from the AGR Program for misconduct.  On 4
August 2002, he submitted a request for consideration of his retention in
the NMARNG, through his chain of command.  He never received a response.

4.  The applicant further states, in effect, that the authority used in his
separation for misconduct was National Guard Regulation 600-5, paragraph 6-
4a(4) and did not comply with the provisions of Army Regulation 135-18 and
was not governed by Army Regulation 135-178, to include he was never given
a copy of his separation packet.  He was not given any instructions,
guidance, or a date of appointment from his chain of command on who, what,
why, or where, about the transition points, or what it consisted of.  Based
on his shortcomings and downfalls, the reason for his misconduct did not
seem like a pattern of misconduct.  The first incident was in 1976, the
second in 1980, the third in 1987, and the last was in 1999.  He was
counseled only on the one in 1987.  Based on Army Regulation 635-10,
Processing Personnel for Separation and Army Pamphlet 635-4, Pre-Separation
Guide, transition counselors are to assist in giving guidance in preparing
Soldiers to transfer from an active duty military life to a civilian life.
He was not given this opportunity.

5.  The applicant also states that on approximately 20 April 2003, he
received a call from the recently appointed TAG of NM and asked if he was
interested in a mission, in which it could assist him in completing the
remaining 22 months in order to be eligible for retirement pay after
completing 20 years of Federal active duty service.  Prior to this date, he
was working for Wal-Mart, and for several months his family suffered very
serious financial difficulties to include almost losing his home.  He was
mobilized on 26 May 2003 and positioned as the Personnel Non-Commissioned
Officer for Cluster III and IV.  The mission was Operation Noble Eagle,
Home Land Security.  During this mission he was to apply for sanctuary, he
got approved, and he retired on 1 May 2005.

6.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and orders; his AGONM Form 600-1
(Request for Discharge, NMARNG); his NGB Form 22 (Report of Separation and
Record of Service) and orders; and his ARNG personnel records, in support
of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the NMARNG, in pay
grade E-1, effective 28 February 1975.

2.  The applicant was ordered to active duty in an AGR status for 36 months
effective 14 February 1986.

3.  Reference made in the Memorandum from the Department of Military
Affairs, State of NM, dated 21 March 2001, shows the applicant was the
subject of an action to determine if his security clearance should be
revoked due to the development of unfavorable information.

4.  On 18 March 2002, the Chief Adjudication Division, US Army Central
Personnel Security Clearance Facility, Fort Meade, Maryland, advised the
NMARNG and the applicant that the data furnished with the response to a
memorandum, dated 9 November 2001, subject:  Intent to Revoke Security
Clearance was not sufficient to explain, refute or mitigate the factors
upon which the proposed revocation of his security clearance action was
based.  They considered the applicant's successful completion of an alcohol
treatment program.  However, the applicant failed to provide a statement or
any other documentation that would mitigate his falsification of security
forms, financial mismanagement, criminal conduct, and misuse of alcohol.
In addition, his chain of command did not recommend the applicant for a
security clearance.  His records do not contain a copy of the 9 November
2001 memorandum.

5.  On 21 March 2002, based on an evaluation by the US Army Central
Personnel Security Clearance Facility, Fort Meade, Maryland, an unfavorable
determination was made and the applicant's security clearance was revoked.


6.  On 25 March 2002, the applicant was selected by a Qualitative Retention
Board for retention in the NMARNG.

7.  On 2 April 2002, the AGR Branch Manager, Department of Military
Affairs, NMARNG, advised the applicant's commander that based on the
revocation of the applicant's security clearance, the Soldier was no longer
eligible under Army regulations to maintain an active status in his current
position.  Courses of action that were eligible for the Soldier were being
reviewed.

8.  On 4 April 2002, the applicant completed a Notice of Intent to Appeal
form.  This form does not show he elected to appeal directly to the
Personnel Security Appeal Board or requested a personal appearance before a
Defense Office of Hearings and Appeals Administrative Judge.

9.  On 12 April 2002, the Command Administrative Officer, Headquarters
111th Air Defense Artillery Brigade, Albuquerque, NM, requested a 30-day
extension for reconsideration of determination of the revocation of the
applicant's security clearance.  The memorandum stated that the applicant
was entitled to due process.

10.  On 16 April 2002, the applicant submitted an appeal to the notice of
intent to revoke his security clearance.  His records do not show the
results of this appeal.

11.  On 1 August 2002, the applicant’s commander initiated action to
separate the applicant from the service under the provisions of National
Guard Regulation 600-5, Chapter 6, Section 6-4, paragraphs a(4) and a(10),
and Section 6-5, paragraphs c(1), c(2), and c(3) for conduct surrounding
his four driving while intoxicated convictions and the loss of his security
clearance.  The recommendation and the applicant's reply would be submitted
through the brigade commander, the Chief of Staff, the Assistant TAG, to
the separation authority, the TAG, State of NM, who would make the final
decision.  The applicant was notified that as stated in Chapter 6-4 of the
National Guard Regulation 600-5, Soldiers would be separated without board
action and he did not have the right to an appeal or an administrative
board.

12.  He was released from active duty under the provisions of Army
Regulation 635-200, paragraph 14-12b, pattern of misconduct, effective
31 August 2002.

13.  The NMARNG issued Orders No. 283-105, dated 10 October 2002,
separating him from the NMARNG under the provisions of National Guard
Regulation 600-200, paragraph 8-27u, effective 31 August 2002, with
transfer to the Retired Reserve.

14.  On 26 March 2003, the State Equal Employment Manager, Department of
Military Affairs, NMARNG, advised the applicant that a request for his case
number had been submitted to the National Guard Bureau and as of that date
had not been determined.  His discrimination complaint had been classified
as formal and forwarded to the next command level.

15.  In a Memorandum for Record, dated 11 August 2003, the State Equal
Employment Manager, Department of Military Affairs, NMARNG, acknowledged
the withdrawal and administrative closure of the applicant's formal
discrimination complaint.  The reason for the withdrawal was based on the
discussion between the applicant and the TAG and resolution of the
complaint by assignment of the applicant to a Title 10 position within the
NMARNG.

16.  The NMARNG issued Orders No. 140-505, dated 20 May 2003, revoking the
10 October 2002 orders discharging the applicant from the NMARNG.

17.  The applicant was ordered to active duty effective 26 May 2003.

18.  The applicant was issued a DD Form 215 (Correction to DD Form 214,
Certificate of Release or Discharge From Active Duty), dated 27 January
2004, correcting Block 28 (Narrative Reason for Separation), of his DD Form
214, dated 31 August 2002, to read, "Miscellaneous/General Reasons/Nothing
Follows".

19.  The applicant was released from active duty for sufficient service for
retirement effective 30 April 2005.

20.  The applicant was separated from the NMARNG, in pay grade E-7,
effective 1 May 2005 and transferred to the Retired Reserve.

21.  The applicant's ARNG Current Annual Statement, dated 29 June 2005,
shows he was credited with 30 years, 2 months, and 4 days qualifying
service for retired pay, as of 1 May 2005.

22.  National Guard Regulation 600-5, prescribes the policies and
procedures for the management of ARNG Soldiers in the AGR Program.  Chapter
6, Paragraph 6-4, sub-paragraphs a(4) and a(10) of this regulation
specifies that AGR Soldiers will be separated without board action for
failure to obtain, or for the loss of required security clearance and
failure to meet military occupational specialty or area of concentration
qualification standards.  Chapter 6, Section 6-5, paragraphs c(1), c(2),
and c(3) specifies that AGR Soldiers will be separated without board action
for inappropriate professional and personal conduct and loss of
professional qualifications required for the performance of assigned
duties.

23.  National Guard Regulation 600-200, paragraph 8-27u, specifies that
Soldier separated under this paragraph will be discharged and transferred
to the Retired Reserve if they are not yet age 60.

24.  Army Regulation 635-200, chapter 14, prescribes the policies and
procedures for separating enlisted personnel for misconduct because of
minor disciplinary infractions, a patter of misconduct, commission of a
serious offense, conviction by civilian authorities, desertion, and absence
without leave.  Before taking actions against a Soldier under this chapter
for minor disciplinary infractions or a patter of misconduct, commanders
will ensure that the Soldier has received adequate counseling and
rehabilitation.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to removal of his 2002 NMARNG discharge for misconduct.  He has
not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions have been noted; however, in March 2001,
the applicant was notified of the intent to revoke his security clearance.
In March 2002, after a thorough evaluation of his response to the intent to
revoke his security clearance, the applicant was notified that the data
furnished did not sufficiently explain, refute, or mitigate the factors
upon which the proposed action was based.

3.  The applicant was advised that the US Army Central Personnel Security
Clearance Facility considered the applicant's successful completion of an
alcohol treatment program; however, they determined that the applicant had
failed to provide a statement or any other documentation that would
mitigate his falsification of security forms, financial mismanagement,
criminal conduct, and misuse of alcohol.  In addition, the applicant's
chain of command did not recommend him for a security clearance.

4.  The applicant's commander initiated action to separate the applicant
from the AGR Program for misconduct after revocation of his security
clearance.  The applicant was no longer eligible under Army Regulations to
maintain an active status in his current position.  In accordance with
Chapter 6, Paragraph 6-4 of National Guard Regulation 600-5, AGR Soldiers
may be separated without the right to appeal or board action.  Therefore,
the applicant did not have the right to an appeal or an administrative
board.  The evidence of record confirms the applicant’s discharge
processing was accomplished in accordance with applicable regulations.

5.  The evidence of record shows the applicant reached an agreement in 2003
with the TAG, NMARNG, and his 2002 discharge from the NMARNG was revoked.
The evidence of record also shows the applicant was issued a DD Form 215,
dated 27 January 2004, correcting Block 28 (Narrative Reason for
Separation), of his DD Form 214, dated 31 August 2002, to read,
"Miscellaneous/General Reasons/Nothing Follows".

6.  The applicant was mobilized on 25 May 2003 and continued to serve on
active duty until he was released for sufficient service for retirement
effective 30 April 2005.  Therefore, the applicant’s NMARNG records do not
contain an error which requires action by the Board.  He was properly
discharged from the NMARNG on 10 October 2002 and he has not shown
otherwise.

7.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEV __  _BJE ___  _DLL____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



                                  ___     James E. Vick__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013466                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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