RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060007191 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm 

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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 his records be corrected by removing Headquarters, 75th Division (Training Support), Houston, Texas, Orders Number 04-070-00001, dated 10 March 2004; the notification and involuntary separation proceedings, dated 24 January 2004; the letter of reprimand, dated 6 October 2003; and any, and all administrative measures of improper conduct.  

2.  The applicant further requests reassignment to unit through a direct antedated enlistment; award of full credit for active duty service with all back pay and allowances, including weekends and holidays; dismissal of allegations made at the United States Army Sergeants Major Academy; removal of DA Form 268 (Report to Suspend Personnel Actions (Flag)), dated 26 August 2003, DA Forms 4187 (Personnel Action), dated 6 August 2003, 7 August 2003, 22 August 2003, and 28 August 2003; and approval of Travel Voucher or Sub-Voucher, dated 15 October 2003, and DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 September 2003.

3.  The applicant states, in effect, that Headquarters, 75th Division (Training Support), Houston, Texas, Orders Number 04-070-00001, dated 10 March 2004, was found to be improper, based on allegations of misconduct from two prior terms of honorable service, by the Army Discharge Review Board (ADRB).  

4.  The applicant states that the ADRB upgraded his general under honorable conditions discharge from the United States Army Reserve (USAR) to an honorable discharge on 7 April 2006.

5.  The applicant further states that his characterization of service had always been honorable for more than 24 years of total active military service and that at no time were any charges ever formed against him after being honorably released or discharged.

6.  The applicant alleges his unit became hostile when he was promoted to the rank of sergeant major because it was not consulted prior to the promotion board selection.  The applicant continues that his duties included oversight of the unit as the Operations Sergeant Major.





7.  The applicant alleges that there was tension when the Headquarters commander singled out a junior enlisted Soldier as an Army Physical Fitness Test (APFT) failure but exempted other senior personnel who also had failed the record APFT.  The applicant further alleges that on the same day both the Headquarter and Headquarters Detachment (HHD) commander and the command sergeant major (CSM) of his unit failed the record APFT and should have been administratively flagged according to APFT policy.  

8.  The applicant states that he requested guidance from the group commander in an effort to improve the unit's record APFT results while maintaining integrity.  The applicant states that even though the commander made comments on the unit's behavior, he was reluctant to support a remedial plan.

9.  The applicant provides copies of several personnel administrative actions; ADRB Case Number AR20050001530, dated 7 April 2006; his enlistment rating scheme; Statement of Medical Examination and Duty Status Form; a travel voucher; a list of his duty assignments; and an itemized list of his contentions [page 13 of his continuation sheet] in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service record is incomplete; however, a review of the documents that were provided by the applicant and his available records reveals that he enlisted in the USAR on 1 April 1977.  The applicant's record shows that he served as an enlisted member on Active Duty from 9 August 1977 through 8 August 1980 and then transferred to the USAR Control Group (Reinforcement). The applicant's record shows that he attained the rank and grade of specialist/pay grade E-4 during this period.

2.  The applicant's record shows that he continued to serve in the USAR during the period 9 August 1980 through 11 April 1990, in a Troop Program Unit (TPU) as a drill sergeant, in time attaining the rank of sergeant first class/pay grade E-7. 

3.  The applicant transferred to the Army National Guard (ARNG) and served as an enlisted member not on Active Duty during the period 12 April 1990 through 26 July 1991.  

4.  On 27 July 1991, the applicant accepted a commission as a second lieutenant in the ARNG and served as a second lieutenant/O-1 after attending Officer Candidate School (OSC).  It is unclear what occurred after that point, but the applicant was honorably separated due to involuntary release from the Active Guard Reserve Program on 26 July 1993.
5.  On 27 July 1993, the applicant enlisted in the Oklahoma ARNG (OKARNG) in the rank of staff sergeant/pay grade E-6, apparently on an Active Guard Reserve (AGR) tour as a recruiter.  

6.  On 3 March 1997, the applicant was released from Active Duty, and transferred to the USAR on an unknown date (possibly in April 1997 based upon his honorable discharge that month).  

7.  On 10 July 1997, the applicant was promoted in the USAR to the rank of sergeant first class/pay grade E-7, and then to the rank of master sergeant/pay grade E-8.  

8.  The applicant presumably received his notification of eligibility for retired pay at age 60 (20 year letter), which was mailed to him on 20 April 2000.

9.  Department of the Army, U.S. Army Reserve Personnel Command, St Louis, Missouri, ARPC-EPHB3-E595 Orders T-04-106265, dated 12 April 2001, ordered the applicant to active duty for training at the Army Sergeants Major (SGM) Academy, Fort Bliss, Texas for a period of 303 days, effective 1 August 2001.  The school rated his performance as superior for oral communication and research ability, as well as satisfactory for written communication and contribution to group work; however, the faculty rated him as unsatisfactory for leadership skills as shown on DA Form 1059 (Service School Academic Evaluation Report), dated 30 May 2002.

10.  Department of the Army, U.S. Army Reserve Personnel Command, St Louis, Missouri, ARPC-EPHB3-E595 Orders T-04-106265A01, dated 7 May 2002, amended his orders to show a period of 321 days, effective 1 August 2001.  

11.  The applicant's NCO Evaluation Report (NCOER) for the period July 2002 through May 2003 shows his performance to be marginal and his senior rater determined it to be poor.

12.  The applicant's record shows that he had previously been assigned in February 1999 as a chemical noncommissioned officer and observer controller to the 2nd Simulation Exercise Group, 1st Brigade 75th Division (Training Support), located at Fort Sill, Oklahoma.  The applicant was reassigned to the same unit in August 2002.  On 27 January 2003, the applicant entered Active Duty and was given the duty position of S-3 Sergeant Major.  

13.  On 1 September 2002 the USAR promoted the applicant to the rank of sergeant major/pay graded E-9.  
14.  The applicant's military service record contains a DA Form 4187 (Personnel Action), dated 6 August 2003, filed by the 2nd Simulation Exercise Group, 1st Brigade, 75th Division (Training Support), Fort Sill, Oklahoma.  This form shows that the applicant was placed in an absent without leave (AWOL) status on 5 August 2003.

15.  DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 26 August 2003, shows the applicant's commander initiated a non-transferable flag effective 15 August 2003, based on a security violation by the applicant.  This form does not contain any additional information.

16.  The applicant's military service record contains a DA Form 4187, dated 6 August 2003, filed by A Company, 1st Battalion (ABN), 504th Infantry, Fort Bragg.  This form shows that the applicant's duty status was AWOL, which was changed to a status of dropped from the rolls.  The remarks section of this form shows an inquiry was conducted on 5 August 2003 and 6 August 2003. The results of that inquiry shows that a DA Form 31 (Request and Authority for Leave) was given to the applicant on 30 July 2003 by an administrative Soldier, who offered to take it immediately for signature and the applicant declined.  

17.  The form also shows that on 4 August 2003, the applicant was instructed to report to the Group Commander.  The form shows that the applicant stated that he did not show up for the meeting because he was given the day off.  The form shows that the command was unable to reach the applicant by cell, home phone, through his next of kin, or at his quarters, which contained his personal items during the period 4 August 2003 through 7 August 2003.

18.  A DA Form 4187, dated 7 August 2003, shows the applicant's duty status was changed from AWOL to present for duty.

19.  A DA Form 4187, dated 22 August 2003, shows the applicant's duty status was changed from present for duty to AWOL on 15 August 2003.  The remarks section of this form shows that an inquiry was conducted for the period of AWOL during the period 5 August 2003 through 6 August 2003.  The inquiry shows that the applicant was ordered by his HHD commander to report for reverse Soldier Readiness Program processing but failed to complete the process.  The inquiry also shows that the applicant had not reported to his unit but still continued to sign in for his quarters.

20.  A DA Form 4187, dated 28 August 2003, shows the applicant's duty status was changed from AWOL to present for duty on 28 August 2003.  

21.  Department of the Army, memorandum from the 75th Division (Training Support) Houston, Texas, dated 6 October 2003, issued the applicant a general officer memorandum of reprimand (GOMOR), dated 6 October 2003, for being AWOL from his unit during the periods 5 August 2003 through 8 August 2003 and 15 August 2003 through 28 August 2003.  The memorandum also shows that the applicant was reprimanded for willfully disobeying an order from his immediate commander to be "At Ease," at which time he became hostile.

22.  Headquarters, US Army Field Artillery Center, Fort Sill, Oklahoma, Orders 262-0116, dated 19 September 2003, reassigned the applicant to the U.S. Army Transition point pending release from active duty as of 14 October 2003.

23.  On 7 December 2003, the applicant acknowledged receipt of the commander's letter of reprimand.  The applicant also elected to consult with counsel and submit a statement in rebuttal.

24.  Department of the Army, 2nd Simulation Exercise Group, 1st Brigade, 75th Division (Training Support), Fort Sill, Oklahoma, dated 24 January 2004, notified the applicant of the pending separation proceedings.  The notification of separation proceedings was issued under Army Regulation 135-178 (Army National Guard and Reserve Enlisted Administrative Separations), in accordance with chapter 9 and chapter 12 of that regulation.

25.  The memorandum notified the applicant that his commanding officer was initiating action to separate him from the USAR under Army Regulation 135-178, Chapter 9, for a pattern of unsatisfactory performance.

26.  The applicant's commanding officer listed the following reasons for separation: 

	(1)  Counseling statements of disrespect and non-compliant behavior, provided by his senior non-commissioned senior trainer at the USASMA (United States Army Sergeants Major Academy), dated 8 January 2002; 

	(2)  Statements of insubordination and defiance of authority, provided by his faculty advisor and instructor USASMA, dated 14 January 2002 and 4 March 2002; 

	(3)  Statement of conduct unbecoming a senior non-commissioned officer, provided by a second faculty advisor USASMA, dated 6 March 2002; 

	(4)  Unsatisfactory performance as a senior non-commissioned officer documented on 30 May 2002, on a DA Form 1059 (Service School Academic Evaluation Report) for marginal achievement of course standards in leadership skills; 

	(5)  Supervisory development counseling session on 25 February 2003, for belligerent and insubordinate conduct displayed on 19 February 2003; 

	(6)  Initiation to revoke security clearance based on access to sensitive information, dated 26 August 2003; 

	(7)  Suspension of access to classified information, dated 2 September 2003; 

	(8)  Relief from his responsibilities as the Operations Sergeant Major, and revocation of off-post privileges, dated 2 September 2003; 

	(9)  Refusal to follow recommendation in performance, behavior, and attitude, after being counseled 4 September 2003, by his supervisor and the 2nd SEG S3/Operations officer's; and 

	(10)  Disruptive conduct which ended with ordering the applicant's release from Active Duty and demobilization on 5 September 2003.

27.  The memorandum of notification also included the commanding officer's reason for separating the applicant under the provisions of AR 135-178, Chapter 12, Section 1, paragraph b, for a pattern of misconduct prejudicial to good order and discipline.  

28.  The commanding officer pointed out the following reasons as the bases for his recommendation: (1) Violation of Article 90, Uniform Code of Military Justice (UCMJ), on 2 July 2003, for willfully disobeying an order from a commissioned officer, and the HHD Commander; (2) Two Violations of Article 86 of the UCMJ for being AWOL from his unit during the periods 5 August 2003 through 8 August 2003 and 15 August 2003 through 28 August 2003; (3) Violation of Article 134 of the UCMJ for disrespectful conduct and use of vulgar, inappropriate language toward the command sergeant major, (4) Two Violations of Article 86 of being AWOL and Violation of Article 90 for willfully disobeying an order from a commissioned officer, and the HD Commander. 



29.  The memorandum shows that the applicant's commanding officer also recommended that he receive a general under honorable conditions discharge.  The applicant was also advised that the recommendation if approved could result in discharge from the USAR, transfer or reassignment from his USAR unit to the Individual Ready Reserve, or release from custody and control of the Army.  The applicant was also advised that the separation action was being suspended for 45 days to give him an opportunity to exercise the following rights:  to consult with legal counsel; to obtain copies of unclassified documents or summarized classified documents; representation at an administrative board; to submit a statement in rebuttal instead of having an administrative board; to undergo a US Army medical and mental evaluation.  The applicant was advised to complete the endorsement acknowledging receipt of the memorandum, indicating the election of rights.  The applicant was also advised that failure to deliver the completed endorsement within 30 days of the date of receipt of the memorandum would constitute a waiver of rights and immediate separation.

30.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 September 2003, shows that the applicant was treated for a right knee Achilles deficiency based on an injury he sustained on or about February 2003 while moving furniture.

31.  Travel Voucher or Subvoucher Form, dated 15 October 2003, shows that the applicant traveled from his home of record on 27 January 2003 to Fort Sill, Oklahoma.  The second entry shows that on 14 October 2003, the applicant traveled from Fort Sill to his home of record.

32.  Memorandum for Record Medical Holding Company, US Army Medical Center, Fort Sill, Oklahoma, dated 10 November 2003, shows that the applicant and other Soldiers reported to Plans, Mobilization, Education, Training and Security (PMETS) on 19 August 2003 to receive hospital security badges.

33.  Department of the Army, Headquarters, 75th Division (Training Support), Houston, Texas, memorandum, dated 15 March 2004, addressed the applicant's untimely response rebuttal to the notification of separation and his belief that the action was unjustified.  The memorandum shows that the commander acknowledged receiving the applicant's response 17 days past the 30 day suspense date; therefore, he separated the applicant from the USAR on 10 March 2004.



34.  The memorandum also responded to the applicant's allegation that the notice of separation incorrectly directed him to the Fort Sill Trial Defense Office rather than a Reserve Component Defense Counsel.  The memorandum shows that the applicant did not contact the Trial Defense Office before he sent his response, to determine whether or not that office could assist him.

35.  The memorandum also shows that the applicant had a preexisting relationship with a defense counsel at the Fort Sill Trial Defense Office and had been properly notified of his rights to legal counsel which he did not choose to timely exercise.  The memorandum shows that the command considered the applicant waived his rights to a board of officers and was properly separated on 10 March 2004.

36.  On 7 April 2006, the Army Discharge Review Board (ADRB) considered the applicant's request for upgrade of his discharge.  The board determined, after careful examination of the applicant's record of service during the period of enlistment under review, hearing his testimony, and considering the analyst's recommendation and rationale, that it would be appropriate to upgrade his general under honorable conditions discharge to an honorable discharge.

37.  Department of the Army, Headquarters, 75th Division (Training Support), Houston, Texas, Orders 06-263-00001, dated 20 September 2006, revoked or rescinded the general under honorable discharge Order 04-070-00001, Headquarters, 75th Division (Training Support), effective 10 March 2004.

38.  Department of the Army, Headquarters, 75th Division (Training Support), Houston, Texas Orders 06-269-00002, dated 26 September 2006, under the provision of Army Regulation 135-178 honorably discharged the applicant on 10 March 2004 (VOCG 10 March 2002) from the USAR.  Additional Instructions stated that the characterization of service was amended by direction of the Army Discharge Review Board, Docket AR20050001530, dated 6 April 2006.

39.  Army Regulation 635-200 (Separation from Active Duty), paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

40.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  In effect at the time it governed separation for acts or patterns of misconduct, or for unsatisfactory performance.  The regulation provided that the separation authority could disapprove the commander’s recommendation for discharge for misconduct and direct disposition by other means; disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance; or convene a board of officers to determine whether the service member should be separated for misconduct.  When discharged under for misconduct, the characterization of service was normally under other than honorable conditions.  The regulation also permitted the characterization of service as a general, under honorable conditions, but did not authorize the characterization of service as honorable.

41.  Paragraph 2-2d (Guidance) of Army Regulation 135-178, the Soldier's entire military record, which includes past contributions to the Army, assignments, awards and decorations, evaluation ratings, letters of commendation, memorandums of reprimand or admonition, counseling records, records of 
nonjudicial punishment, records of conviction by court-martial, records of involvement with civilian authorities, and any other matter deemed relevant by the board or the separation authority.  

42.  Paragraph 2-2d(6)(d) of Army Regulation 135-178, shows that adverse information from a prior enlistment or period of military service may be used only when such information would have a direct and strong probative value in determining whether separation is appropriate.

43.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) in effect states that a flag is initiated to denote a favorable or unfavorable change in the Soldier's status.  Paragraph 1-12e pertains to the circumstances requiring a non-transferable flag.  Removal of the flag is upon the direction of the Soldier's commander.

44.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 

45.  Chapter 3 of Army Regulation 600-37 provides guidance regarding the filing of non-punitive administrative letters of reprimand, admonition, or censure in official personnel files in the military personnel records jacket (MPRJ).  Paragraph 3-4a(3) provides that a letter designated for filing in the MPRJ only may be filed for a period not to exceed 3 years or until reassignment of the recipient to another general court-martial jurisdiction, whichever is sooner.  Such a letter will state the length of time it is to remain in the MPRJ.

46.  Paragraph 3-4b(1)(a) of Army Regulation 600-37 provides for the filing of a letter, regardless of the issuing authority, in the Official Military Personnel File (OMPF).  A letter to be included in a Soldier's OMPF will be referred to the recipient concerned for comment according to paragraph 3-6.  The referral will include reference to the intended filing of the letter.

47.  Paragraph 7-2b of Army Regulation 600-37 provides that only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  In addition, such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  This regulation further provides that in the cases where the appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record. The appeal will be placed in the restricted portion of the OMPF.

48.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous Active Duty.  It provides a brief, clear-cut record of active Army service at the time of release from Active Duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his characterization of service was upgraded to honorable and he is entitled to award of full credit for active duty service to include full pay, allowances, and benefits.



2.  The applicant has not explicitly specified what period of time he desires active duty service credit.  However, based upon his honorable discharge from active duty on 14 October 2003 and his reference to his allegedly improper discharge from the USAR on 10 March 2004, it is presumed that he is requesting credit for active duty service from the date of his discharge from active duty on 14 October 2003 to the present time.

3.  The applicant continues that the ADRB granted him relief because it determined that his USAR discharge was improper and he seemingly is implying that further relief from the ABCMR is therefore warranted.

4.  The applicant also alleges that his command cited misconduct from previous periods of active duty as grounds for his administrative separation, but since these were periods for which he received an honorable characterization of service, he believes his command should not have been allowed to use these grounds.

5.  Evidence of record shows that the applicant's commanding general had the authority to release him from active duty after his misconduct caused disruption in his unit.  The applicant's discharge from the USAR was also authorized.  The applicant's brigade level commander clearly notified him of his rights in accordance with Army Regulation 135-178 (Administrative Separation).  The applicant subjected himself to involuntary separation by his own inaction of failing to timely exercise these rights, thereby waived them.

6.  Paragraph 2-2 (Guidance) of Army Regulation 135-178 states in subparagraph d that "the following factors may be considered on the issue of retention or separation, depending on the circumstances of the case.  Adverse information from a prior enlistment or period of military service only when such information would have a direct and strong probative value in determining whether separation is appropriate."

7.  The applicant contends that his GOMOR, dated 6 October 2003, should be voided.  The applicant, in effect, alleges that his command did not meet due process requirements when it served the GOMOR and the length of time it would be filed in his records.  The applicant also denies the allegations of misconduct contained in the GOMOR which stated he was twice AWOL and disobeyed his superior commissioned officer.




8.  The applicant was correct in pointing out that his GOMOR did not list in its body or in a list of attachments the documents upon which its allegations were based.  However, Army Regulation 600-37 (Unfavorable Information), dated 19 December 1986, does not stipulate that this information must be included in the letter or memorandum of reprimand itself.

9.  Furthermore, two of the DA Forms 4187, dated 6 August 2003 and 22 August 2003, set forth detailed information about the AWOL periods, which should have assisted him in preparing his acknowledgement (i.e. rebuttal).  In addition, in the applicant's acknowledgement of the GOMOR, he listed six documents as his enclosures, including a memorandum by the 2nd SEG Commander, dated 18 July 2003, which also should have assisted him in preparing his rebuttal.

10.  The applicant contends that the GOMOR did not specify the length of time the GOMOR was to remain filed, since the issuing authority advised the applicant in the reprimand that he was considering filing it in the OMPF.  The GOMOR filing time was not required to be shown, since it is only requires reprimands to be placed in the MPRJ, in accordance with paragraph 3-4a(3) of Army Regulation 600-37.  As to the allegations of disobeying a superior commissioned officer, the applicant does not offer any evidence to show that he actually did not disobey his detachment commander on the occasion in question.  Therefore, the applicant fails to refute this allegation of misconduct and has not overcome the presumption of administrative regularity or met the burden of proof.

11.  The applicant contends that any and all "Administrative Measures for Conduct" against him should be dismissed.  The applicant indicates that the GOMOR and its adverse consequences against him, means allegedly that in spite of his submission of an acknowledgment of the GOMOR, his commander (not identified by name) responded by telling the applicant that he was not in an active pay status and therefore would have to provide the commander with a supplemental response.  

12.  The applicant further asserts that he was never given a chance to defend himself against the GOMOR’s allegations and that the commander treated his request for evidence as a waiver of rights.  The applicant offers no evidence to show that this in fact occurred.  He further asserts he was not advised of his right to consult with a Reserve Component Trial Defense Services (TDS) legal counsel.  The applicant fails to meet his burden of proof because he does not offer any evidence other than his own assertions that his commander actually told him that he would be forced to submit a supplemental response to his GOMOR just because he was not in active pay status at the time.  

13.  The applicant's memorandum documents his receipt of the GOMOR.  He initialed by paragraph 3, which stated, “I understand that, should I wish to submit matters, I will be given the opportunity to consult with legal counsel.  He did not initial that if he had difficulty making an appointment to consult with counsel, he would contact the Chief of Criminal Law Division, Office of the Staff Judge Advocate, at Fort Sill, Oklahoma (the telephone number was also given); so apparently, he did not have difficulty.  

14.  However, this discrepancy of the handwritten date and the date stamp is resolved by the date stamp of the receipt memorandum, which is date stamped 27 November 2003, presumably the date it was delivered to the applicant.  The GOMOR itself has the same date stamp of 27 November 2003.  Perhaps more important is the obvious fact that the applicant could not have responded to the GOMOR on 2 December 2003 if he had not received a copy of it until 7 December 2003.  It appears the reason behind the 7 December 2003 handwritten date is that 2nd SEG commander officially administered the GOMOR to the applicant on 7 December 2003, even though he must have received it earlier as just explained.

15.  The applicant contends that the ABCMR should dismiss allegations made against him by the USASMA, which accused him of misconduct while at the academy.  He, in effect, argues that these allegations must be found baseless because he did graduate from the academy, was honorably discharged following the completion of his training there, and was subsequently promoted to 
SGM/E-9.  Moreover, he seems to be confusing two separate things: the investigation of possible misconduct at the USASMA with the much later use of the same (but presumably substantiated) misconduct as grounds for separation from the USAR. 

16.  The applicant contends that the notification of administrative separation proceedings served on him should be rescinded.  The applicant's contentions are not entirely clear, but he seems to argue that based on the fact he was honorably released from Active Duty on 14 October 2003, he could not have been pending charges or the subject of unfavorable information at the time of his separation.  

17.  The applicant appears to believe that if he had actually been flagged due to a security violation, the Army would not have allowed him to be released in accordance with his understanding of AR 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), dated 23 December 2004.  

18.  The applicant also alleges his command advised him that he could seek assistance from the Active Component TDS, which he maintains was incorrect advice because he was no longer in an active duty status at the time.  He further alleges the Fort Sill TDS and legal assistance offices told his group commander, that the actions of his detachment commander did not provide evidence to sustain the allegations of his misconduct.  

19.  Finally, the applicant alleges that his DD 214 for the period ending 14 October 2003 shows no lost time which he presumably intends as a rebuttal to the AWOL allegations contained in his GOMOR and in the notification of separation proceedings.  The applicant misunderstands the provisions of Army Regulation 600-8-2, and mistakenly relies upon this to assume and argue he was not pending charges or the subject of unfavorable information at the time of his release from Active Duty.  

20.  The applicant's chain of command did flag him by reason of a “security violation” after he allegedly committed misconduct in the summer of 2003 (the flag was presumably based at least on his two periods of AWOL, perhaps also on his disobeying his detachment commander and other allegations of misconduct). The flag presumably was just a safeguard to prevent his access to classified or sensitive information while he was pending resolution of his situation.  His commander was authorized by the applicable Army regulation to take this precautionary measure.  

21.  However, contrary to the applicant’s belief, a flag by itself cannot prevent the expiration of term of service (ETS) and hold a Soldier on active duty against his or her will beyond the ETS date.  Paragraph 1-16 of AR 600-8-2 explicitly states that Soldiers will not be retained past their ETS / ESA (expiration of service agreement) / MRD (mandatory release date) because they are flagged; rather, all actions must be completed prior to that date, or authority to extend them must be obtained from Headquarters, Department of the Army (HQDA).  Paragraph 2-9 of the same regulation reiterates that Soldiers will not be held past their ETS / ESA / MRD solely because they are flagged.  The paragraph 2-10 that follows makes it clear that only in exceptional circumstances IAW the applicable regulation, such as court-martial charges being preferred, can the Army involuntarily extend a Soldier beyond his or her ETS / ESA / MRD.  

22.  Furthermore, for a flag in the security violation category, the Soldier’s own commander can remove the flag if it was imposed for local security violations, which was the applicant’s case.  Thus, the fact that the applicant was honorably released from active duty on 14 October 2003 (although not his ETS, his official date of separation), does not prove he was not under suspicion of misconduct or the subject of unfavorable information at the time; in fact, his command directed his release from active duty due to the disruption he was apparently causing in his unit.  The USAR was obligated to give him an honorable discharge, since he could only have received a general discharge or an other than honorable discharge if administrative separation board proceedings recommending such a discharge had been fully completed and approved by the separation authority by 14 October 2003.  

23.  Moreover, contrary to the applicant’s implied argument, an honorable discharge by itself is no guarantee that the Soldier in question does not have unfavorable information contained in his records by the time of his release from Active Duty.  

24.  However, in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), dated 17 October 2003, sets forth in paragraph 3-3 information about counsel for the respondent (i.e., the applicant).  It states that the convening authority can appoint either an Active Army officer or a Reserve Component officer of the Judge Advocate General’s Corps to consult with the respondent and later to represent the respondent at the administrative separation hearing (they need not be the same person).  Moreover, the respondent’s initial counseling can be accomplished not only in person, but alternatively through the use of mail, e-mail, fax, or telephone, as the circumstances dictate.  In the applicant’s case, his notification of separation proceedings in fact advised him of his right to consult with an appointed counsel, or with counsel of his choice if he or she was reasonably available; and it further advised him to first contact his command and arrangements for either appointed counsel or counsel of his choice would then be made on his behalf.  However, the applicant failed to timely contact his command to request legal counsel for consultation. 

25.  The applicant in effect argues that the Fort Sill TDS and legal assistance offices told his group commander that the actions of his detachment commander did not substantiate the misconduct allegations against him.  The applicant offers no evidence to prove this in fact occurred.  

26.  Finally, the applicant argues that because block 29 of his DD Form 214 does not show any lost time for the period ending 14 October 2003, this proves that he was not AWOL at any time during that period of active duty.  However, the DD 214 by itself is not sufficiently persuasive or conclusive evidence to establish he was not AWOL in August 2003, since it is possible that block 29 on his DD 214 may have been an administrative error.  More importantly, the DD 214 by itself cannot overcome the presumption of regularity created by the four DA 4187 forms that document the applicant’s 5-7 August 2003 AWOL and his 15-28 August 2003 AWOL.  Further, the periods of AWOL were cited as misconduct in the GOMOR he was issued in October 2003 and the subsequent notification of separation proceedings again cited the same misconduct in January 2004.

27.  The applicant contends that Orders 04-070-00001, dated 10 March 2004, which discharged him from the USAR on that same date, should be revoked.  The ADRB has since granted relief by upgrading his general discharge to an honorable discharge.  The applicant desires the further relief of revocation or cancellation of these orders so that he will be reinstated in the USAR and may thereby continue his military career.  He alleges the basis for such relief is the ADRB’s finding that his USAR discharge was improper.

28.  Based upon the evidence available to the ABCMR, the applicant’s separation from the USAR appears to have been correctly executed.  While the ADRB did indeed have the authority to make a finding that his discharge was improper, it did not have the authority to revoke his separation orders and restore him to the USAR.

29.  Furthermore, contrary to the applicant’s apparent belief, the ABCMR is not bound by the ADRB’s finding regarding his discharge and may make its own conclusion.  It is noted that in reaching their finding, the ADRB board members indicated that they relied upon the applicant’s assertion that the grounds for his recommended separation improperly included allegations of misconduct from two prior terms of active duty service that ended with honorable discharges.  However, this assertion is actually incorrect, after reviewing the available evidence, the applicant’s notification of separation proceedings appears to have been correctly issued because it accurately follows the format for such notifications when the administrative board procedure is used.

30.  The applicant contends that his DA Forms 4187 (Personnel Action), dated 6 August 2003, 7 August 2003, 22 August 2003, 28 August 2003, which showed that he was AWOL from 5-7 August 2003 and 15-28 August 2003, should be canceled.  He also requests award of pay and allowances for active duty service, presumably meaning for the AWOL periods.  He asserts that the unit daily personnel status reports clearly indicated he was present for duty during the alleged periods of AWOL and that his supervisor did not at any time counsel him for being AWOL.  The applicant again relies upon the ADRB’s finding that his separation from the USAR was improper.  He concludes by accusing his detachment commander of fabricating the DA Forms 4187 because of her hostility towards him and believes she delivered these forms to the Defense Finance and Accounting Service (DFAS) to deduct his pay and allowances.

31.  The documents offered by the applicant do not provide sufficient evidence to prove he was not AWOL during the periods in question.  It is true that these status reports show that no one in his organization was AWOL on some of the dates that the applicant was shown to be AWOL by the DA 4187 forms.  In addition, one Soldier signed a statement testifying that he saw the applicant at first formation on one of the AWOL dates.

32.  However, it is not know when the unit daily status reports were generated, whether early in the day or late in the day.  The applicant did not go AWOL on 5 August 2003 and 15 August 2003 until 1200 hours, and 1100 hours, respectively.  Therefore, the applicant might have been reflected in the status reports as present for duty on those particular days if the reports were generated at the beginning of the day, even though he went AWOL later in the day.  

33.  The same problem applies to Soldier's statement that he saw the applicant at morning formation on 15 August 2003.  Given that the applicant did not go AWOL until 1100 hours that same day, the fact that he was witnessed to be present earlier does not matter.  As for the unit daily status reports purportedly showing the applicant to be present 6-7 August 2003 and 16-28 August 2003 (that is, the AWOL periods minus the first day), the ABCMR does not really know how accurately these documents were maintained by the unit.  The applicant’s unit only at that late date began to process his AWOL paperwork, which could explain why his AWOL status was not recorded on any of the earlier unit daily status reports (and by the 28 August 2003 status report, he was again present for duty).  

34.  In short, the evidence and argument submitted by the applicant is not sufficiently compelling to prove that he was in fact not AWOL on the dates in question.  Since the applicant does not present such evidence at this time, he has again failed to overcome the presumption of administrative regularity of the DA Forms 4187 and has likewise failed to meet his burden of proof.  His allegations against the detachment commander that she fabricated the DA Forms 4187  also fail for lack of convincing evidence.

35.  The applicant contends that his DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 September 2003, should be approved to show that his commander found his injury to have been incurred in the line of duty.  There is simply insufficient evidence to justify granting the applicant’s request for relief.  He does not really explain the circumstances behind why his chain of command found his initial injury to be in the line of duty, but not his later injury.  This being the case, the presumption of administrative regularity again applies to the DA Form 2173 as it currently stands, and ABCMR should not revise it to show approval without additional evidence.

36.  The applicant contends that his DD Form1351-2 (Travel Voucher or Subvoucher), dated 15 October 2003, should be approved and processed.  He had requested via this form reimbursement for travel related expenses incurred during the period 27 January 2003 through 14 October 2003.  There is insufficient evidence to justify granting the applicant’s request for relief.  The applicant does not satisfactorily explain why his command would not approve his travel voucher.  The applicant also does not provide documentation to show his command or DFAS rejected his claim, so he may not have even exhausted his administrative remedies elsewhere.  He needs to provide much more evidence and explanation before relief can be considered.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEA____  _JLP___  _JBM____  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. Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20060007191
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.