RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20050017797


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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 payment for four drills as a lieutenant colonel
and credit of four retirement points.

2.  The applicant states that he was ordered to the 63rd Reserve Support
Command on 7 February 2004 and 8 February 2004 for the purposes of an
Administrative Discharge Board.  The applicant continues that he performed
this duty, in uniform and was there in excess of eight hours each day.

3.  The applicant provides a copy of ABCMR Case Number AR20040007155 in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant currently does not have a military status.

2.  Records show that, on 7 February 2004, the applicant appeared before an
Administrative Discharge Review Board.  On 8 February 2004, the Board
recommended that the applicant be separated from military service.

3.  On 23 February 2004, the appropriate approval authority approved the
Board's findings and recommendations and the applicant was separated
effective 23 February 2004.

4.  The applicant's records do not contain orders which show that he was
ordered to appear before an Administrative Separation Board.

5.  There are no orders in the available records which show that the
applicant was ordered to perform military duties during the period 7
February 2004 through 8 February 2004.

6.  The applicant provided a self-authored statement, dated 18 January
2006.  In this statement, the applicant acknowledged that the ABCMR
requested that he provide copies of his orders to appear before the
Administrative Discharge Review Board on 7 February 2004 and 8 February
2004.

7.  The applicant stated that at the Administrative Discharge Review Board
Hearing his attorney objected to the fact that he was not placed on orders
for the purposes of the Administrative Discharge Review Board.  The
applicant continued that his attorney's objection was overruled.

8.  The applicant argues that, if he was in a military status during his
Administrative Discharge Review Board, then he should have been under
orders during the four drill periods, paid for those drill periods, and
awarded retirement points for those drill periods.

9.  The applicant argues that he was not in a military status at the time
of his Administrative Discharge Review Board and therefore, the Board did
not have jurisdiction over him.  The applicant concluded that as a result
of the above, the Board must be vacated and he must be reinstated in the US
Army.

10.  On 18 January 2006, the applicant provided a letter to the ABCMR in
which he states that he is responding to a telephone message requesting
copies of orders which ordered him to appear before the Administrative
Discharge Review Board.  The applicant contends that his attorney was
contacted and told that he [the applicant] must report in Class B uniform
for the purpose of an Administrative Discharge Review Board.

11.  The applicant continues that at the Administrative Discharge Review
Board his attorney made objection, which was overruled, that no command in
the US Army had cut orders for him to report to the Administrative
Discharge Review Board.

12.  The Operations Officer of the US Army Human Resources Command provide
the following information for review with this application:

      "IAW AR 135-175 [In accordance with Army Regulation 135-175
(Separation of Officers-Army National Guard and Army Reserve), paragraph
2-19a(3), [applicant's name removed] has the right to present his case
before a board of officers at his own expense.  He was not placed on orders
for the time period he appeared before the board.  He also does not fall
within the parameters to receive any retirement points for attendance at
his own separation board."

13.  The applicant was provided a copy of the advisory opinion for review
and comment.

14.  On 17 February 2006, the applicant provided a three-page written
response to the advisory opinion.



15.  The applicant stated that the statement from the US Army Human
Resources Command regarding the fact that no orders were promulgated
ordering him to appear before the Administrative Discharge Review Board was
true and that Army Regulation states that officers will appear before the
board at their own expense.  The applicant continued that this is a blatant
admission by the US Army that they held an Administrative Discharge Review
Board without orders.

16.  The applicant continues that the ramifications of the admission were
quite clear and that in order to hold an Administrative Discharge Review
Board, a Soldier must be subject to the jurisdiction of the Board.  The
applicant further stated that a reservist that is not on active duty or in
a drill status is not subject to military jurisdiction and as a result the
ABCMR must find that the Administrative Discharge Board was null and void
for failure of jurisdiction.

17.  The applicant concluded that he never received any orders placing him
in a military status and therefore, was not subject to the authority of the
US Army.

18.  Army Regulation 135-175 states that officers are afforded specific
rights during the separation process.  Paragraph 2-19a(3) states that an
officer has the right to present his case before a board of officers at
personal expense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to retirement points and
pay for four drills as a lieutenant colonel, and the supporting documents
he submitted were carefully considered.  However, there is insufficient
evidence to support his claim.

2.  The evidence of record confirms that applicant was offered the
opportunity to attend the Administrative Discharge Review Board conducted
on him on 7 and 8  February 2004 at his own expense.  There was no
requirement for him to appear, and he did not participate in a unit drill
or training of any kind.  Further, no orders were published directing his
attendance.  There are no provisions of law or regulation that mandate an
officer must be placed on orders and be provided pay and benefits for
attendance at their own Administrative Discharge Review Board.

3.  Given the applicant voluntarily elected to attend his administrative
separation board at his own expense, and was not officially ordered to do
so, it would not be appropriate or serve the interest of justice, to grant
his request for pay and retirement points for this period.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_PHM___  _DRG___  __RSV___  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.





                                    __Patrick H. McGann, Jr.  _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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