RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 OCTOBER 2006
      DOCKET NUMBER:   AR20060004666


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland 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 that he be restored to active duty in the Active
Guard Reserve (AGR) Program and that he be placed in a new unit.

2.  The applicant states that he had improper leadership; that he was
improperly counseled; that he was verbally and psychologically abused; and
that he was in a hostile work environment while he was a member of the AGR
Program.  He states that he made numerous attempts to be transferred;
however, his attempts were ignored.

3.  The applicant provides in support of his application a copy of his
Rebuttal to the Recommendation for Involuntary Separation for Cause, which
includes a chronology of events; copies of his Developmental Counseling
Forms; copies of electronic mail that he sent and received while he was a
member of the Florida Army National Guard (FLARNG); copies of his
Noncommissioned Officers Evaluation Reports; copies of his Academic
Evaluation Reports; a copy of his Charge Sheet; dental and doctor's
notifications; copies of memorandum that he sent and received while he was
a member of the FLARNG; a copy of his Report to Suspend Favorable Personnel
Action (flag); copies of his Army Physical Fitness Test (APFT) Scorecards;
and copies of his Requests and Authority For Leave.

CONSIDERATION OF EVIDENCE:

1.  On 25 October 1994, he enlisted in the Army Reserve in Miami, Florida,
for 8 years, in the pay grade of E-1.  He enlisted in the Regular Army (RA)
for 4 years on 2 February 1995, and he successfully completed his training
as an automated logistic specialist.

2.  After what appears to have been two extensions in the RA, he was
honorably released from active duty on 1 October 1999, upon completion of
his required active service.

3.  The applicant enlisted in the FLARNG for 3 years on 21 July 1999, and
he was assigned to Headquarters, Headquarters Company (HHC), 260th Military
Intelligence (MI) Battalion (Linguist).  On 29 May 2001, he extended his
enlistment for 2 years, and on 3 February 2004, he extended his enlistment
for an additional 6 months.



4.  On 1 April 2004, orders were published placing the applicant on full
time National Guard duty in an AGR status, with a reporting date of 18 June
2004, and an active duty commitment of 9 months and 14 days.  He remained
assigned to HHC, 260th MI Battalion.

5.  The applicant was notified on 5 May 2004 that charges were pending
against him for two specifications of failure to obey a lawful order given
by his senior NCO, and on 8 June 2004, his personnel records were flagged
due to pending adverse action.

6.  The charges were preferred to a summary court-martial on 14 August
2004, and in a memorandum dated 26 August 2004, Subject: Rejection of Trial
by Summary Court-Martial, the applicant indicated that he would like to
exercise his rights as the accused to reject trial by summary court-
martial, and to request that his charges be referred to a special or a
general court-martial.  A review of the available records fails to show
that the applicant was ever tried by court-martial while he was a member of
the AGR Program.

7.  On 4 October 2004, the battalion commander notified the applicant of
his intent to pursue his involuntary separation for cause from the AGR
Program due to his difficulty with military chain of command and authority,
his difficulty with following directions, and his duty performance, which
covered the span of three separate supervisors.  In the notification, the
battalion commander stated that the applicant failed to adequately adapt
and perform his duties and was a detriment to the operation of the company
and the battalion; that nonjudicial punishment was initiated against him,
however, he elected trial by court-martial for disobeying a lawful order
from his Readiness Noncommissioned Officer (NCO); that he was counseled
several times by his previous and current NCOs and his previous unit of
assignment supervisor for showing up late to work and failing to follow
instructions; that he was counseled for APFT failure; that he failed to
accomplish Army and unit standards as an NCO; that he failed to maintain
physical fitness; and for numerous additional counseling and improper
incidents.

8.  The applicant acknowledged receipt of the notification on 7 October
2004, and on 15 October 2004, he submitted a rebuttal to the recommendation
for involuntary separation for cause.  In his rebuttal, the applicant
detailed why he believed that involuntary separation should not be pursued
and he included emails; memorandums; requests for leave; doctors notes
dental notes; his charge sheet; APFT Scorecards; and development counseling
forms explaining

why he believed that he was being improperly counseled; that he was being
verbally and psychologically abused; and that he was being subjected to a
hostile work environment.

9.  The flag that had been initiated against the applicant was removed on
10 January 2005.  On the same day, the applicant was notified that he was
being involuntarily separated from the FLARNG AGR Program with a
termination date of 31 March 2005.  He was informed that his headquarters
had thoroughly reviewed his information and that based on the review, it
was the decision of the Adjutant General to approve the request for his
termination from the AGR Program.  He was informed that the decision of the
Adjutant General is final with no appeal process.

10.  Orders were published on 3 February 2005, informing the applicant that
he was being relieved from active duty in AGR status effective 31 March
2005, at the expiration of his term of service.  The orders also informed
him that he was being assigned a LHJ (unsatisfactory performance)
Separation Code.

11.  Accordingly on 31 March 2005, the applicant was released from active
duty under the provisions of Army Regulation 635-200, chapter 13, due to
unsatisfactory performance.

12.  On 1 April 2005, the applicant was honorably discharged from the
FLARNG. The NGB Form 22 that he was furnished at the time shows that he was
discharged under the provisions of NGR 600-200, 8-27o, as determined by the
State Adjutant General or Chief, National Guard Bureau that separation is
in the best interest of the State.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under this chapter when, in the commander's judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.


2.  The applicant's contentions and his supporting documents have been
noted.  However, there is no evidence in the available records, nor has he
submitted any evidence to show that he was improperly counseled; that he
was verbally and psychologically abused; or that he was in a hostile work
environment created by someone other than himself while he was a member of
the AGR Program.

3.  The available records show that he was counseled numerous times
regarding his unsatisfactory performance and improper incidents.  According
to his battalion commander, he had difficulty with his military chain of
command and authority; he had difficulty with following directions; and his
duty performance was not satisfactory.  He had three different supervisors
and according to the available information; he had problems with all three.
 His battalion commander believed that he was a detriment to the operation;
to the company; and to the battalion, and after reviewing all of the
evidence of record and the evidence submitted by the applicant, this Board
is more inclined than not to agree with his battalion commander.

4.  The available evidence shows that his release from the AGR Program was
proper and, in the absence of evidence to the contrary, it must be presumed
that what the Army did in the applicant's case was correct.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  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

__PM ___  ___DG __  ___ RV      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 McGann ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2006000004666                         |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20050331                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 13                       |
|DISCHARGE REASON        |UNSAT PERFORMANCE                       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR15-185                                |
|ISSUES         1.  192  |110.0400/REINSTATEMENT                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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