RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            31 October 2006
      DOCKET NUMBER:   AR20060004828


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Mr. Bernard Ingold                |     |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, that all documents generated by the
Massachusetts Army National Guard (MAARNG) after 16 March 2004 be voided
and removed from his Official Military Personnel File (OMPF).  He also
requests that the letter of reprimand (LOR) be removed from his OMPF
because it was never properly filed there and he further requests that the
revocation orders number C-08-420013R, issued by Human Resources Command
(HRC) on 20 April 2005 be revoked and that the original order be allowed to
remain in effect.

2.  The applicant states, in effect, that he submitted his resignation from
the Active Guard Reserve Program and his request was approved for a
discharge date of 17 February 2004, with a discharge under honorable
conditions.  He goes on to state that he was discharged from the MAARNG and
was transferred to the United States Army Reserve (USAR) Control Group
(Reinforcement).  Orders and separation documents were published by the
MAARNG and on 2 May 2004, while he was serving in the USAR, the MAARNG
published revocation orders returning him to the control of the MAARNG.
The MAARNG also conducted an administrative separation board and a
reduction board in his absence and subsequently discharged him again from
the MAARNG with a General Discharge in the pay grade of E-4.  He continues
by stating that all actions after his initial discharge from the MAARNG,
when orders were published on 16 March 2004 were illegal and should be
removed from his records.  He also states that he received a LOR that was
filed only in his Military Personnel Records Jacket (MPRJ) for a period of
1 year; however, that document is currently filed in his OMPF.
Additionally, his USAR assignment orders to a Troop Program Unit (TPU) were
revoked due to the actions taken by the MAARNG and should not have been.

3.  The applicant provides a list of documents that he contends are
improperly filed on his OMPF, copies of the actual documents, copies of his
separation documents and orders and an explanation of his application.

CONSIDERATION OF EVIDENCE:

1.  On 17 December 2003, while the applicant was serving as an AGR
personnel records sergeant (E-5), the Deputy Chief of Staff for Personnel
of the MAARNG issued the applicant a LOR for his unprofessional and
inappropriate behavior.  He advised the applicant that he intended to file
the LOR in the applicant’s MPRJ for a period of 1 year, unless sooner
removed by proper authority.

2.  On 11 February 2004, the applicant submitted his voluntary resignation
from the Title 32 AGR Program.  He indicated that he was resigning from the
AGR Program in lieu of the command processing a possible separation action
against him and further indicated that he would not seek to reenlist in the
MAARNG.

3.  On 18 February 2004, orders were published by the MAARNG which
rescinded the unexecuted portion of the applicant’s AGR tour and returned
him to the control of the MAARNG.

4.  On 4 March 2004, orders were published by the MAARNG discharging the
applicant under honorable conditions from the MAARNG, effective 11 February
2004 and transferring him to the USAR Control Group (Reinforcement).  Those
orders were revoked on 10 March 2004.

5.  On 16 March 2004, orders were again published by the MAARNG discharging
the applicant from the MAARNG under honorable conditions and transferring
him to the USAR Control Group (Reinforcement), effective 17 February 2004.
His DD Form 214 issued at the time of his release from active duty (REFRAD)
indicates that he was separated for voluntary resignation in lieu of non-
retention on active duty.

6.  On 2 May 2004, the MAARNG revoked the applicant’s discharge orders.
However, on 4 August 2004, the HRC in St. Louis, Missouri reassigned the
applicant to a TPU as a USAR sergeant.

7.  On 23 September 2004, orders were published by the MAARNG which reduced
the applicant to the pay grade of E-4 for inefficiency.

8.  On 6 November 2004, an administrative separation board was convened
without the applicant being present and a recommendation was made to
discharge the applicant from the MAARNG with a general discharge.

9.  On 1 December 2004, orders were published by the MAAARNG which directed
that the applicant be discharged under honorable conditions effective
15 January 2005.

10.  On 20 April 2005, the HRC revoked the orders reassigning the applicant
to a TPU.

11.  On 21 November 2005, orders were published by the MAARNG which
directed that he receive an uncharacterized discharge effective 7 November
2005.

12.  On 1 December 2005, a memorandum signed by the Deputy Chief of Staff
of Personnel of the MAARNG indicates that the results of an administrative
separation board had been approved by the Adjutant General of Massachusetts
to discharge the applicant under honorable conditions effective 15 January
2005.

13.  A report of separation (NGB Form 22) was prepared on 15 January 2005
discharging the applicant with a general discharge due to unsatisfactory
performance.

14.  In the processing of this case a staff advisory opinion was obtained
from the National Guard Bureau (NGB) which opines that partial relief
should be granted in this case.  Officials at the NGB opine that once the
applicant was discharged from the MAARNG and was transferred to the USAR on
16 March 2004, any actions taken by the MAARNG after that date were invalid
and should be removed from his records.  Additionally, the LOR should also
be removed.  The advisory opinion was provided to the applicant for comment
and to date no response has been received by the staff of the Board.

15.  Army Regulation 135-178, Enlisted Separations, provides in paragraph 2-
13b(1) that once a Soldier receives their separation orders, by actual or
constructive delivery, such orders may not be revoked except when the
orders are revoked by proper authority, either orally or in writing, prior
to the effective date of discharge.

16.  Army Regulation 600-8-105, Orders, states that for orders, only the
unexecuted portion of the order should be rescinded if any action has been
taken in compliance with the order.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge orders were unjustly
revoked by the MAARNG after he had been transferred to the USAR has been
noted and appears to have merit.

2.  Additionally, the applicant was subsequently reduced in grade and was
subsequently discharged as a result of an administrative separation board
convened in his absence by the MAARNG.

3.  After reviewing the actions that occurred in this case and the
administrative errors that were made in this case, it is apparent that
actions were taken by the MAARNG that were not accomplished in accordance
with the applicable regulations.

4.  The evidence also suggests that once the MAARNG had discharged the
applicant on 16 March 2004 and transferred him to the USAR, they no longer
had the authority to administratively pull him back within their authority
or to take subsequent actions against him in his absence.

5.  Accordingly, all actions taken by the MAARNG after 16 March 2004 should
be revoked and all documents generated by the MAARNG that are dated after
16 March 2004 should be removed from his OMPF.

6.  Additionally, the LOR issued to the applicant on 17 December 2003 was
directed to be filed in the MPRJ for a period of 1 year.  Therefore, that
document, which is improperly filed in his OMPF, should also be removed
from his OMPF.

7.  The applicant’s contention that the order published by the HRC – St
Louis on 20 April 2005, which revoked the 4 August 2004 orders reassigning
him to a TPU should only have revoked the unexecuted portion of the order
has been noted; however, the applicant has not explained what unexecuted
actions he is referring to and therefore, the Board cannot be expected to
make an informed decision on that document, especially since it does not
appear that he has coordinated that action with the HRC prior to making his
application to this Board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JA___  ___JM __  ___BI  __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by revoking all actions taken by the MAARNG after 16
March 2004, when that organization discharged the applicant and transferred
him to the USAR and by removing all of those documents from his OMPF as
well as the LOR that is also erroneously filed in his OMPF.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
revoking the HRC – St. Louis order (C-08-420013R) dated 20 April 2005, as
the applicant has not exhausted his administrative remedies or coordinated
that action with that agency.




                                  ____James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004828                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061031                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20040217                                |
|DISCHARGE AUTHORITY     |NGR 600-200, AR 135-178 & 600-8-105     |
|DISCHARGE REASON        |Voluntary Resignation from T32 AGR      |
|BOARD DECISION          |(PARTIAL GRANT)                         |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |328/REM DER INFO                        |
|1.134.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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