RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20060000434


      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. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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’s records be corrected
to show that his 2003 orders to active duty be construed as Secretarial
action which overturned his 1 April 1999 release from active duty (REFRAD)
and reinstated him to active duty without a break in service and that he be
authorized back pay and allowances for the intervening period.

2.  Counsel states that the applicant’s “alleged” misconduct was
established by an “alleged” nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice imposed by his “alleged” commanding
officer.   He was subsequently recommended for separation from active duty
by a Department of the Army Active Duty Board (DAADB) and the
recommendation was approved by the Deputy Assistant Secretary of the Army
(DASA) Review Boards.  Counsel also contends, in effect, that the applicant
was eligible for Temporary Early Retirement because that is a “purely
military retirement system” and suggests that the ABCMR erred in denying
his request for early retirement.

3.  Counsel notes that the United States Court of Appeals recently
confirmed the Secretary of the Army’s (SA) authority to overrule the
decisions of the DAADB and contends that ordering the applicant to active
duty constitutes such action.  He also contends that, since Army Regulation
600-8-24 (Officer Transfers and Discharges), under which the applicant was
separated, is still in effect, it requires that he be separated.
Therefore, since he has not been removed from active duty, “this means the
Secretary has excused him from the applicability of this regulation.
Accordingly he should not have been released from active duty in the first
place.”

4.  Counsel cites case law that he insists is controlling because the true
reason for the applicant’s REFRAD was a reduction in force, a “draw down”
under such conditions as to preclude him from receiving separation pay.  He
implies that had the SA not intended to overrule the ABCMR he would have
given notice “if not actively seeking permission from the ABCMR to
reinstate [Applicant].”  Counsel also contends that the SA also has
unlimited discretion to overrule the DAADB and that the applicant’s orders
to active duty constitute his “reinstatement.” Counsel further contends
that ordering the applicant to active duty, in effect, constitutes a
partial administrative settlement on the issue of liability.  He also
claims that the applicant’s return to active duty “means that [Applicant]
was wrongfully processed for release from active duty in the first place
since the alleged misconduct is now nullified, over-ruled by the Secretary
of the Army and no longer exists as a means of separating him from active
duty.…”

5.  Counsel submits the brief in support of the request, copies of the
applicant’s 1 April 1999 DD Form 214 (Certificate of Release or Discharge
from Active Duty), the DASA Review Boards 11 February 1999 memorandum
approving the DAADB recommendation, the DAADB case routing slip with
signatures, pages 4 through 7 [the final page] of the ABCMR Memorandum of
Correction, the applicant’s 13 January 2003 orders to active duty for 365
days for “Mobilization for Enduring Freedom,” a 12 January 2003 employer
notification stating that the applicant’s United States Army Reserve (USAR)
Troop Program Unit (TPU) would be mobilized on 16 January 2003, MILPER
Message Number suspending voluntary separation of officers and enlisted
personnel from the Active Army and Ready Reserve (Stop Loss 3), an extract
of Title 37, United States Code, Section 204, Pay and Allowances-Basic Pay;
and an extract of Army Regulation 600-8-24 (Officer Transfers and
Discharges).

 CONSIDERATION OF EVIDENCE:

1.  The applicant, a USAR chief warrant officer four (CW4) was on active
duty in the Active Guard/Reserve (AGR) program.  On 1 April 1999 he was
REFRAD with an honorable characterization of service for misconduct, moral
or professional dereliction.  He was transferred to the USAR Control Group
(Reinforcement) with 15 years, 9 months, and 14 days total active duty
service.

2.  On 25 May 2000 the ABCMR considered and denied the applicant’s requests
that he be reinstated to active duty, authorized back pay and allowances
and retired for length of service or, if not reinstated, that he be
authorized separation pay.

3.  On 13 January 2003 the applicant was ordered to active duty “as a
member of his Reserve Component unit” for the purpose of “Mobilization for
Enduring Freedom.”  He was returned to active duty on 28 June 2004 to
complete 20 years of active Federal service.

4.  Title 10 United States Code, Section 1552 states, in pertinent parts,
“(a)(1) The Secretary of a military department may correct any military
record of the Secretary's department when the Secretary considers it
necessary to correct an error or remove an injustice.  Except as provided
in paragraph (2), such corrections shall be made by the Secretary acting
through boards of civilians of the executive part of that military
department.…(3) Corrections under this section shall be made under
procedures established by the Secretary concerned.  In the case of the
Secretary of a military department, those procedures must be approved by
the Secretary of Defense.”

5.  Army Regulation 15-185 (Army Board for Correction of Military Records)
provides, in pertinent part,  that “The Secretary of the Army will oversee
the operations of the ABCMR.  The Secretary will take final action on
applications, as appropriate…The ABCMR members will —
      a. Review all applications that are properly before them to determine
the existence of error or injustice.
      b. If persuaded that material error or injustice exists and that
sufficient evidence exists on the record, direct or recommend changes in
military records to correct the error or injustice.
      c. Recommend a hearing when appropriate in the interest of justice.
      d. Deny applications when the alleged error or injustice is not
adequately supported by the evidence and when a hearing is not deemed
proper.
      e. Deny applications when the application is not filed within
prescribed time limits and when it is not in the interest of justice to
excuse the failure to file in a timely manner.“

6.  Army Regulation 15-185, paragraph 2-15b (Reconsideration of ABCMR
decision),  provides, in pertinent part, “…If the ABCMR receives the
request for reconsideration more than 1 year after the ABCMR’s original
decision or after the ABCMR has already considered one request for
reconsideration, then the case will be returned without action and the
applicant will be advised the next remedy is appeal to a court of
appropriate jurisdiction.”



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to the ABCMR for reinstatement will not be
addressed since the case was decided more than 1 year ago and as a result,
his request for reconsideration does not meet the criteria outlined above.
He has the option to seek relief in a court of appropriate jurisdiction.
Therefore, this case involves the proposition that the applicant’s
mobilization in support of Operation Enduring Freedom constituted an action
by the Secretary of the Army that overturned his 1999 REFRAD and
“reinstated” him to active duty.

2.  Title 10 United States Code, Section 1552 and Army Regulation 15-185
make it clear that the Secretary of the Army or his designee takes final
action on applications and that the ABCMR only recommends relief or denies
an application.

3.  Counsel’s assertions about the Secretary of the Army having the
ultimate authority to correct a record are correct, but they are also
irrelevant.  There is no connection between the applicant’s REFRAD for
misconduct and his mobilization in support of Operation Enduring Freedom.
There is also no substantiating evidence to show that anyone had any
intention of overturning any previous action by reversing the applicant’s
REFRAD for misconduct or that anyone took any inadvertent action which had
that effect.

4.  Notwithstanding counsel’s assertion that the applicant was
“reinstated,” he was not.  He was simply mobilized as a member of his USAR
unit in a separate and unrelated personnel action.

5.  If the Secretary of the Army had, in fact, overturned the actions of
the DAADB or reversed the ABCMR finding and actually reinstated the
applicant, the applicant would have been ordered to active duty in the AGR
and would have been paid retroactively.  He would not be required to apply
to this Board.

6.  The applicant was REFRAD and transferred to the USAR Control Group
(Reinforcement).  Subsequently, he was apparently affiliated with a TPU
that was mobilized in support of Operation Enduring Freedom.  He was not in
any way “reinstated” to active duty.  Reinstatement would necessarily have
placed him immediately back into the AGR program.

7.  The only connection between the REFRAD and the mobilization call-up is
that they involved the same individual.  Ordering the applicant to active
duty as part of a USAR TPU had no bearing upon the appropriateness of the
previous REFRAD.

8.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ALB___  __QAS__  _LMB___  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.





                                  ___Allen L. Raub____
                                            CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20060000434                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|110.03                  |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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