RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20060011919 


	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. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Ms. Ann Campbell

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey Redmann

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 military records be corrected to void his involuntary discharge from the North Carolina Army National Guard (NCARNG), that he be reinstated in the NCARNG, that he be promoted to lieutenant colonel (LTC), that he be given constructive credit from the date of his discharge to the date of his reinstatement, and that he be paid all appropriate back pay and allowances. 

2.  The applicant states, in effect, that while serving in the Active Guard Reserve (AGR) program he was selected for promotion to LTC and The Adjutant General (TAG) NCARNG denied his promotion twice and also denied a request for reassignment.  He believes that he was retaliated against for submitting an Inspector General (IG) complaint in September 2002, on an officer who was receiving an excess Basic Allowance for Housing.  He states that he received notice of involuntary separation from the AGR program on 24 November 2003, for abusive and degrading comments about TAG NCARNG, for the separation to be effective 29 February 2004.  He points out that the degrading comments were contained in an email he had confidentially sent to a colonel after he had a conversation with two brigadier generals concerning how the TAG NCARNG had disapproved his [the applicant’s] promotion and reassignment because of his IG complaint.  He indicated that in September 2004 he sought assistance from the Department of the Army IG (DAIG) for improperly browsing email accounts.  The DAIG investigation on the allegations of improperly targeted email stated that this was in violation of Army regulations. 

3.  The applicant provides a 20-page statement with 12 exhibits outlined on page 20.

CONSIDERATION OF EVIDENCE:

1.  Having prior active and inactive service, the applicant accepted appointment in the ARNG and entered the AGR program of the NCARNG on 2 July 1997.  He was promoted to major effective 1 August 1998.

2.  The applicant apparently filed an IG complaint in September 2002 on an officer who was receiving an excess BAH.    

3.  The applicant contends that in May 2003 the NCARNG Career Management Board (CMB) selected him for a unit vacancy promotion with an effective date of 1 September 2003.  He also contends that the NCARNG CMB selected him for promotion to LTC again in July 2003.  However, there is no evidence of record which shows the applicant was selected for promotion to LTC.
4.  On 17 August 2003, the applicant sent an email to a colonel.  The email states, in pertinent part, “I said it once and I will say it again, if my Mom passes before I make LTC, I will personally hurt B__ [Chief of Staff], __ and I__ [the TAG].  I will get my revenge, it has gone too far.  I have seen the enemy and he is weak.” and “B__, __ and I__ will feel my pain and then some.  I will destroy their families like they have destroyed mine.” 

5.  On 24 November 2003, the applicant’s commanding officer initiated action to separate him from the NCARNG under the provisions of National Guard Regulation (NGR) 600-5, paragraph 6-5c(1) for inappropriate professional and personal conduct.  Specifically, the action was initiated because of his abusive and degrading comments toward TAG and Chief of Staff of the NCARNG and his threats toward the families of TAG and the Chief of Staff, as evidenced by email correspondence he submitted.  On 24 November 2003, the applicant acknowledged receipt of the memorandum.     

6.  On 16 December 2003, the applicant submitted a rebuttal statement to his involuntary separation from the AGR program.  In summary, he explained the reasons (severe emotional stress) for his email and apologized for his acts.  He also mentioned that he sought assistance from the DAIG on 4 September 2004 to determine how somebody improperly obtained access to his email account and that of another officer. 

7.  On 20 January 2004, TAG NCARNG approved the recommendation for separation.  He directed that the applicant be separated from the NCARNG AGR program effective 29 February 2004, that he remain in the NCARNG as a traditional (M-Day) Soldier unless appropriately discharged, and that he would be required to attend all scheduled training assemblies with his current unit. 

8.  On 29 February 2004, the applicant was honorably released from active duty under the provisions of NGR 600-5, chapter 6. 
  
9.  On 15 January 2005, the applicant was honorably discharged from the NCARNG due to his resignation and transferred to the U.S. Army Reserve (USAR) Group (Reinforcement).  

10.  A DAIG letter, dated 6 May 2005, found that the applicant was properly separated from the AGR program in the NCARNG and that he received due process in the proceedings.  The content of one email sent by the applicant to a colonel in Kuwait was the basis for the involuntary separation of the applicant.  The DAIG did not substantiate that TAG NCARNG violated Army regulations through his actions to separate the applicant involuntarily from the AGR program. TAG and his Chief of Staff acted within the limits of their regulatory authority in the separation of the applicant.  Additionally, the DAIG did not substantiate that TAG was involved, directly or indirectly, with the collection of the emails by the applicant and the colonel.  The DAIG did not substantiate two separate allegations that TAG improperly reprised against the applicant for making an IG complaint against the officer who allegedly received excess BAH.  The evidence established that TAG’s actions in these cases were proper and within his authority as TAG.  As required, their inquiries into these allegations were reviewed and approved by the IG, Department of Defense.  The DAIG substantiated an allegation that the applicant was disrespectful to a superior commissioned officer.       

11.  On 10 August 2005, the applicant was released from the USAR Control Group (Reinforcement) and assigned to a Troop Program Unit. 

12.  The applicant’s Chronological Statement of Retirement Points, prepared on 
6 September 2007, shows he completed 20 years and 1 day of creditable service for retired pay.  

13.  On 25 May 2007, an advisory opinion was obtained from the Legal Division, NGB.  The opinion concluded that the NCARNG properly removed the applicant from his AGR position and that TAG’s decision not to promote the applicant was procedurally correct and not the product of reprisal.  The opinion points out that the DAIG previously investigated identical claims made by the applicant to that agency and did not sustain them.  The DAIG investigated the allegations in the applicant’s application to the Army Board for Correction of Military Records.  After an extensive investigation, the DAIG did not substantiate the applicant’s claims that he was improperly removed from his AGR position, and further, on 6 May 2005, took the extraordinary step of reporting these findings to the Governor of North Carolina.          

14.  The advisory opinion also states that TAG NCARNG did not abuse his discretion in not promoting the applicant to LTC because he deemed the applicant unfit for promotion, that as the approval authority for the CMB recommendations to promote officers prior to their consideration by a Department of the Army promotion selection board in accordance with Title 10, U.S. Code, section 14101, he properly declined to promote the applicant to the rank of LTC.  The DAIG’s investigation did not substantiate the allegation that TAG improperly reprised against the applicant for making an IG complaint.  Further, it was noted that the decision not to promote the applicant was made before TAG received notice of the applicant’s threatening email.  The opinion disagreed with the applicant’s contention that his threatening email was unlawfully turned over to the NCARNG. The DAIG did not substantiate this allegation.  The DAIG concluded that “it was prudent that [the] Colonel … inform the Chief of Staff of the seriousness of a threat made by [the applicant’s name] in the e-mail.”  Moreover, the DAIG determined that the individuals who discovered the questionable email, “reasonably forwarded” them to the NCARNG even though their subsequent monitoring of the email was contrary to policy.  The DAIG substantiated some matters and did not substantiate other matters.  

15.  On 29 May 2007, a second advisory opinion was obtained from the NGB.  That office recommends disapproval of the applicant’s requests due to the NCARNG correctly terminating the applicant from the AGR program in accordance with NGR 600-5, paragraph 6-5c(1).  TAG approved the applicant’s transfer as a traditional (M-Day) Soldier with his original unit.  The applicant voluntarily resigned his ARNG commission and was transferred to the USAR Control Group effective 15 January 2005, in accordance with NGR 635-100.  The opinion states that the DAIG investigation of the allegations of improperly targeted emails stated that this was in violation of Army Regulation 380-19.  Although this regulation did not explicitly permit systems/unit administrators to read users’ emails, one could infer this permission from regulation.  The DAIG also stated that reading users’ email is a logical way to check for unofficial computer use during the duty day, to check for users plotting to transport privately owned weapons or consume alcohol in violation of a general order.  The DAIG stated that if the Network Administrator suspects that an individual user is engaging in any misuse or misconduct, he or she will notify the individual chain of command and the Criminal Investigation Command.  The DAIG finally stated that although it was not inappropriate to notify the individual of suspected misconduct, the chain of command never received authorization to continue reading the individual emails afterward. 

16.  On 30 May 2007, the advisory opinion was provided to the applicant for rebuttal.  On 19 June 2007, counsel for the applicant requested an extension to reply to the advisory.  This request was granted with a suspense date of 23 July 2007.  On 23 July 2007, per counsel’s second request for an extension to reply to the advisory opinion, a suspense date of 23 August was granted by this Board.  As of 29 August 2007, the applicant had not replied within the given time frame and his case was forwarded to the Board for consideration.   

17.  Chapter 6 (Separation) of NGR 600-5 (The Active Guard Reserve Program Title 32, Full-Time National Guard Duty) states, in pertinent part, that a reason for involuntary separation under this paragraph includes inappropriate professional and personal conduct.  This regulation also states, in pertinent part, that [the State] Adjutant General will be the final separation authority for AGR Soldiers.  

18.  Rule H of Table 2-6 of Army Regulation 135-18 (The AGR Program) states that a Soldier is ineligible for subsequent duty in the AGR program if the Soldier 
is, or should be, as determined by CNGB or the CAR, under a current suspension of favorable personnel actions (flagged) per Army Regulation 
600-8-2.  

19.  Rule I of Table 2-6 of Army Regulation 135-18 states that a Soldier is ineligible for subsequent duty in the AGR program if the Soldier is being processed for involuntary release from active duty or full time National Guard duty, or for separation because of one of the following:  for cause, to include unsuitability or unfitness (other than temporary medical disability) for military service; nonselection for promotion by a mandatory officer promotion board convened by HQDA, unless subsequently selected; or as a result of resignation in lieu of adverse personnel action.   

20.  Chapter 8 of NGR 600-100 states that the promotion authority for all Army National Guard officers is The State Adjutant General.  If TAG chooses not to promote an officer, he or she is not obligated to do so.    

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contentions that he was denied promotion to LTC twice by TAG NCARNG because of retaliation for submitting an IG complaint.  The DAIG investigation did not substantiate the allegation TAG improperly reprised against the applicant for making an IG complaint.         
 
2.  The evidence of record supports the applicant’s contention that the DAIG investigation of the allegations of improperly targeted email stated that this was in violation of Army regulations.  The DAIG substantiated some matters and did not substantiate other matters.  With regard to the applicant’s contention that his threatening email was unlawfully turned over to the NCARNG, the DAIG did not substantiate this allegation.  The DAIG concluded that “it was prudent that [the] Colonel … inform the Chief of Staff of the seriousness of a threat made by [the applicant’s name] in the e-mail.”  Moreover, the DAIG determined that the individuals who discovered the questionable email, “reasonably forwarded” them to the NCARNG even though their subsequent monitoring of the email was contrary to policy.  

3.  It appears that the applicant was properly released from the AGR program under the provisions of Table 2-5 of Army Regulation 135-18.  Therefore, there is no basis for granting the applicant’s requests.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

AC_____  __LD____  __JR____  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.


___Ann Campbell_______
          CHAIRPERSON




INDEX

CASE ID
AR20060011919
SUFFIX

RECON

DATE BOARDED
20071002
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0300
2.
131.0000
3.
112.0700
4.
128.1400
5.

6.