RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20060015788 


	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. Linda Simmons

Chairperson

Mr. Frank Jones

Member

Ms. Carmen Duncan

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 he be reinstated in the Alabama Army National Guard with all appropriate back pay and allowances. 

2.  The applicant states, in effect, that he was not retained in the Alabama Army National Guard because someone signed his signature on his retention package. He states that the signature on his Notification of Qualitative Retention Board (QRB) Review is not his, that he never reviewed his military personnel records jacket, and that he never received the package as stated in item 3 on this notification. 

3.  The applicant provides an undated Notification of QRB Review and a Selection Retention Board Worksheet. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Alabama Army National Guard on 30 June 1973. 

2.  The U.S. Army Human Resources Command St. Louis, Missouri Total Army Personnel Data Base shows the applicant was issued a notification of eligibility for retired pay (20-year letter) on 5 November 1993.  

3.  The applicant attained the rank of sergeant first class effective 1 May 2000 in military occupational specialty 63H (automotive repair specialist).    

4.  A DA Form 3349 (Physical Profile), dated 17 December 2003, shows the applicant was issued a permanent profile of 322221 with limitations of no running, no push-ups, no sit-ups, and no assignment to areas without a definitive medical care facility.

5.  A DA Form 5500-R, dated 13 June 2004, shows the applicant’s percent body fat was 33.51 and he was not in compliance with the standards.  His Noncommissioned Officer Evaluation Report for the period October 2003 to September 2004 shows that he was not within height and weight standards.

6.  A DA Form 5500-R, dated 4 November 2004, shows the applicant was in compliance with Army standards.

7.  In January 2005, the applicant’s case was considered by the 2005 Alabama Army National Guard Enlisted Qualitative Retention Board and he was not retained.  His Selection Retention Board Worksheet shows the members recommended non-selection with “Medical” entered in the remarks section.  The reason for non-selection was not world wide deployable.

8.  On 22 February 2005, the applicant was notified that he had been considered for qualitative retention and was not selected.  He was also advised that he would be discharged no later than 18 April 2005, transferred to the Control Group (Reinforcement) of the Individual Ready Reserve, or to the Retired Reserve according to the option he selected. 

9.  The applicant provided an undated signed Notification of Qualitative Retention Board Review which shows he signed an election option to be transferred to the Retired Reserve. 

10.  On 18 April 2005, the applicant was honorably discharged from the Alabama Army National Guard for non selection for retention by the Qualitative Retention Board.  

11.  A Narrative Report from the National Guard Bureau Staff Judge Advocate for the applicant’s Report of Investigation shows that an investigation was initiated in April 2005 based on the applicant’s allegations that the Alabama Army National Guard discriminated against him to disqualify him for further military service as non-selected by the QRB.  The investigation found that no discrimination occurred.  According to the investigation, the Alabama Army National Guard Enlisted Personnel Branch stated that failure to meet body fat standards or failure to pass the AFPT would not be considered as adverse to a Soldier being considered for retention by the board; also, neither race nor other indicators were listed on the data sheet reviewed by the board.  The investigation discouraged the practice of signing others’ names to official documents.   

12.  A memorandum, dated 14 October 2005, from the Alabama Army National Guard to the 1156th Military Police Detachment (Criminal Investigation) shows a request was made for an investigation into the applicant’s allegation that his signature was forged in the preparation of his QRB packet.  A memorandum, dated 28 September 2006, from the 1156th Military Police Detachment Criminal Investigation determined that the elements of a crime had not been met in this case. 

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau on 22 June 2007.  The opinion recommended approval of the applicant’s requests based on the DA Form 
5500-R, dated 22 June 2007, which shows the applicant’s body fat was in compliance at the time he was considered and non-selected by the QRB.  Therefore, the DA Form 5500-R and the DA Form 2168-8 provided to the QRB that showed him not in compliance were erroneous, so his consideration and non-selection were not in accordance with Army Regulation 135-205.  That office also recommended that the DA Form 5500-R which shows the applicant’s body fat was not in compliance be corrected, that he appeal his DA Form 2168-8 for the period through September 2004.  That office also provided a DA Form 
5500-R, dated 22 June 2007, which shows the applicant’s percent body fat was 24.58 and that he was in compliance with Army standards in 2004. 
  
14.  On 25 June 2007, the advisory opinion was furnished to the applicant for his review and possible rebuttal.  He concurred with the advisory opinion on 1 July 2007.

15.  On 16 July 2007, a revised advisory opinion was received from the Chief, Personnel Division, National Guard Bureau.  That office modified the 22 June 2007 advisory opinion and recommended disapproval of the applicant’s requests based on new documentation provided by the Deputy Chief of Staff for Personnel (DCSPER) from the Alabama Army National Guard.  The National Guard Bureau did not have this documentation when making the first recommendation due to QRB results not being releasable to the Soldier.  On 3 July 2007,  the Alabama Army National Guard DCSPER sent the National Guard Bureau a memorandum disagreeing with the advisory opinion due to the applicant not being retained under the 2005 QRB because he was not world-wide deployable according to the Adjutant General’s QRB guidance.  

16.  On 23 July 2007, the revised advisory opinion was furnished to the applicant for his review and possible rebuttal.  On 9 August 2007, the applicant submitted a rebuttal.  In summary, he stated that he felt that it did matter whether or not the agency complied with Army Regulation 135-205 concerning the QRB (it should be performed in a military manner, there should be a standard of conduct, the Soldier has a right to review the process as well as sign it, and that no one has the right to review or forge another person’s name on a military document).  His second issue dealt with the Criminal Investigative Division investigation.  He thought it was their job to find out if forgery did occur and whether Army Regulation 135-205 was conducted according to the investigation.  It was not their responsibility to make the call to say if it was a crime or not, that is supposed to go to higher personnel.  Lastly, he comments about racial discrimination and that the limitations shown on his physical profile occurred on the job.     

17.  Chapter 4 of Army Regulation 135-205 (Enlisted Personnel Management), in effect at the time, stated, in pertinent part, that a continuing program of qualitative retention was essential to provide for progression of qualified enlisted personnel at proper intervals in their careers.  
18.  Paragraph 4-1a of Army Regulation 135-205 stated that the QRP will ensure only the best qualified Soldiers were retained in a troop unit beyond 20 years of qualifying service for retired pay.  These Soldiers would be retained for continuing assignment to the comparatively few senior noncommissioned officer positions.  

19.  Paragraph 4-3 of Army Regulation 135-205 stated, in pertinent part, that this chapter provided policy and procedures governing the selective retention of Soldiers in Army National Guard units and U.S. Army Reserve Troop Program Units.  The QRP policy contained in this chapter applied to Army National Guard Soldiers with 20 or more years of qualifying service for retired pay including those serving on Full-Time National Guard Duty under title 32, U.S. Code.  

20.  Paragraph 4-18b of Army Regulation 135-205 stated, in pertinent part, that Soldiers not selected would be processed for discharge or reassignment according to the option selected. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that he was not retained in the Alabama Army National Guard because someone signed his signature on his retention package.  The Criminal Investigation Division’s mission is to investigate reports of crime, such as forgery, not to determine if administrative actions were properly conducted.  The 1156th Military Police Detachment (Criminal Investigation) determined that the elements of a crime (forgery) had not been met in his case.  In addition, even if the Criminal Investigation Division had determined that it was not his signature on the options form, once he had been selected for non-retention his separation from his Army National Guard unit was required by regulation.  Had no option been made, he would have been discharged.

2.  Evidence of record shows the applicant was honorably discharged from the Alabama Army National Guard for non-selection for retention by the QRB.  The reason for his non-selection was not world wide deployable.  This reason appears to be consistent with his physical profile.  Therefore, there is no basis for granting the applicant’s requests.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

LS_____  _FJ_____  _CD_____  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.



___Linda Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20060015788
SUFFIX

RECON

DATE BOARDED
20070906
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0300
2.
128.1400
3.

4.

5.

6.