RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060015916 


	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. Gerard W. Schwartz

Acting Director

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann, Jr.  

Member

Mr. Gerald J. Purcell

Member

	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 reconsideration of his previous request for all pay and allowances lost as a result of his erroneous discharge, removal of the DD Form 214 (Certificate of Release or Discharge from Active Duty), reimbursement of his pay, and an exception to policy be granted so that all income earned after his discharge will not be deducted from his back pay based on financial hardship.  

2.  The applicant also requests the expungement of his Army Regulation (AR) 15-6 investigation from his records and that all actions that resulted from the AR 15-6 investigation be declared null and void.  The applicant further requests that he be promoted to sergeant first class/pay grade E-7 upon reaching time in grade and time in service had he not be discharged.

3.  The applicant states the ABCMR decision in AR20050003082 is systematically replete with errors and omissions.  The applicant further states that due to failure to properly review the original evidence, no new evidence can be provided; however, each paragraph of the previous case will be rebutted with information as to where pertinent documentation was overlooked.

4.  The applicant did not provide any additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050003082 on 23 May 2006.

2.  The applicant argues that his case was erroneously combined with the application of another Soldier and that a previous ABCMR decision granted relief to an applicant with similar circumstances.

3.  The applicant's records were carefully and thoroughly reviewed during the process of this application.  The records of the other two individuals were not used in the determination of this case.  ABCMR cases do not set precedence and therefore, the results of previous similar cases are not considered with individual applications.  You have requested that AR2002077734 for C****y be considered as part of your application.  Although similar situations, AR2002077734 does not indicate that a settlement occurred between the Army National Guard and the applicant was reached in regard to pending litigation.  As a result, the facts and evidence in this application are not identical to the facts and evidence considered in previous ABCMR cases.

4.  As noted in the applicant's previous case, the results of an AR 15-6 investigation show that the applicant was recommended for judicial punishment and/or termination from his Active Guard Reserve (AGR) assignment and involuntary separation.  The applicant requested a formal investigation pursuant to AR 15-6 for a formal board inquiry.  The results of this request are not available for review with this application.   

5.  An Administrative Reduction Board was held during the period 8 through 9 December 2001 to consider the allegations investigated in the AR 15-6 investigation.  The Administrative Reduction Board determined that the evidence was not sufficient to recommend reduction for dereliction in the performance of the applicant's duties and recommended that no action be taken against the applicant.

6.  Records show that after several appeal attempts the applicant was involuntarily separated from his AGR position on 31 January 2002 and reverted to a unit member of the Indiana Army National Guard (INARNG).  He was issued a DD Form 214 which shows that he was released from active duty and transferred to INARNG.  This form also shows that the narrative reason for separation was "UNSATISFACTORY PERFORMANCE."

7.  As a result of a settlement between the Attorney General, State of Indiana, the applicant, and the INARNG, the INARNG offered to immediately restore the applicant to full-time AGR duty in return for dismissal of the applicant's lawsuit.  The Attorney General advised the applicant that if he chose to pursue a claim for back pay he would have to seek relief from the ABCMR.  There is no indication in the settlement that the findings of the AR 15-6 investigation were to be removed from the applicant's official military personnel file (OMPF).

8.  Records show the applicant was returned to full-time AGR duty and promoted to the grade of staff sergeant/pay grade E-6 effective15 November 2004.

9.  The applicant was not in a valid AGR position and did not perform full-time duties in the AGR program during the period 31 January 2002 through 14 November 2004.



10.  As stated in the previous case, there is no evidence in the available records which show that the AR 15-6 investigation was conducted improperly or otherwise flawed.  The applicant contends that the AR 15-6 investigation can and will be used to either limit his ability to renew his tour after the current one that he is serving or used to restrict the total years permitted to serve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the AR 15-6 investigation was not properly conducted and as a result should be removed from his OMPF.  

2.  Although, the Attorney General, State of Indiana and the INARNG restored the applicant to an AGR position, the conditions of the settlement did not include the removal of the AR 15-6 investigation from the applicant's OMPF.

3.  There is no evidence and the applicant has not provided sufficient evidence that it was the intent of the Attorney General, State of Indiana or The Adjutant General of the State of Indiana to remove the AR 15-6 Investigation from the applicant's OMPF.  Additionally, the National Guard Bureau Advisory opinion stated that the AR 15-6 investigation was properly conducted.

4.  There is no mitigating evidence which warrants the applicant's request for removal of the AR 15-6 investigation.  Absent evidence to show that the AR 15-6 investigation was improperly conducted or otherwise flawed, there is no basis to grant the relief requested.

5.  The applicant also contends that he is entitled to back pay and allowances for the period 31 January 2002 through 14 November 2004.

6.  The applicant was not in a valid AGR position and did not perform full-time duties in the AGR program during the period 31 January 2002 through 14 November 2004.  Although the applicant was returned to an AGR position by his settlement, there is no indication that it was the intent of the Attorney General, State of Indiana or The Adjutant General of the State of Indiana to provide the applicant with credit for serving in an AGR position during the period 31 January 2002 through 14 November 2004.  

7.  Since the applicant did not successfully serve in an AGR position during the period in question, there is no basis to grant back pay and allowances for full-time active duty service.

8.  The applicant contends that he should be reviewed for promotion to the grade of sergeant first class/pay grade E-7 upon his reaching time in grade and time in service had he not be discharged.  Evidence shows that the applicant maintained a military status during the period 31 January 2002 through 14 November 2004 and was not discharged as he indicated.  Therefore, the applicant was not denied promotion consideration and there is no basis to grant the relief requested.

9.  The applicant contends that the DD Form 214 issued at the time of his removal from the AGR position on 31 January 2002 is erroneous and should be removed from his records.  There is no evidence and the applicant has not provided sufficient evidence which shows that the DD Form 214 issued at the time of his removal from the AGR program was prepared incorrectly or otherwise flawed.  The applicant's reinstatement to the AGR program was as a result of the legal settlement and there is no indication that the DD Form 214 issued prior to his reinstatement should be removed or otherwise altered.  Therefore, there is no basis to grant the relief requested.

10.  The applicant argues that relief is warranted based on the settlement of his lawsuit.  This settlement does not mitigate the findings of the AR 15-6 investigation.  Although an appropriate Administrative Reduction Board did not take action to reduce the applicant's rank, there is no evidence in the available records and the applicant did not provide sufficient evidence which shows that the intent of the settlement between the Attorney General, State of Indiana, The Adjutant General of the State of Indiana, and the applicant was to relieve the applicant of his responsibilities for his actions.  Therefore, there is no basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV____  PHM___  _GJP____  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 to amend the decision of the ABCMR set forth in Docket Number AR20050003082, dated 23 May 2006.




_James E. Vick_________
          CHAIRPERSON




INDEX

CASE ID
AR
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.