RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 MAY 2008
	DOCKET NUMBER:  AR20070004481 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 that he be reinstated to active duty in the Active Guard and Reserve (AGR) program, and that he be given all pay, entitlements, promotions, and other standings he would have been given if he had not been separated.

2.  The applicant states he was not given notification of the involuntary separation pursuant to Army Regulation 135-178.

3.  The applicant provides a packet prepared by his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s involuntary separation be reversed, that he be restored to active duty with full pay and entitlements and compensation for all pay and entitlements, including date and service time in rank as if he had not been separated, and for such other relief as is just and appropriate.  Counsel requests, in the alternative, that the ABCMR remand the matter to the command for appropriate administrative separation proceedings.

2.  Counsel states that the applicant’s separation from the AGR program was accomplished with a total failure to comply with National Guard Regulation (NGR) 600-5.  This regulation invokes the applicability of the provisions set forth in Army Regulation (AR) 135-18.  AR 135-18 invokes the applicability of 
AR 135-178.

3.  Counsel provides a list of rights provided to Soldiers being considered for involuntary separation, and charges that the applicant was not provided the opportunity to invoke any of these rights.

4.  Counsel provides the applicant’s notification of his commander’s intent to recommend his involuntarily separation from active duty, the commander’s recommendation to separate him, an endorsement of that recommendation, the legal review of the recommendation, a request for extension of the suspense date to submit comments and/or rebuttal to the proposed separation and the approval of that request, the applicant’s counsel’s rebuttal to the proposed involuntary separation action, and the approval of the recommendation to remove the applicant from active duty.  Counsel also submits a written counseling statement, a letter of reprimand, a recommendation for the applicant’s removal from the pay grade E-8 promotion list, a number of sworn statements, a number of letters of support to retain the applicant on active duty, the applicant’s notification of his removal from active duty, a printed e-mail which explains to the applicant the mechanics of his (then) pending separation from active duty, an excerpt from NGR 600-5, pictures from a bar, a printed e-mail from the director of sales from a hotel, the applicant’s DD Form 214 for the period ending 31 October 2006, and correspondence from the applicant’s counsel to the ARNG requesting information and the response to that request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that, while assigned to an Army National Guard (ARNG) Troop Program Unit (TPU), the applicant was ordered to active duty under Title 32 U.S. Code, Section 502, on 16 February 1993.

2.  On 31 January 2006, the applicant, a sergeant first class on active duty in the AGR program under Title 32, U.S. Code, received a written counseling because he was beginning to be a disruption to the good order and discipline of the Health Service personnel, as evidenced by his exhibiting behavior unbecoming an NCO, his lack of military bearing, his exhibiting a negative attitude towards a subordinate, and his lack of loyalty to his superior which bordered on insubordination.  The counselor continued that the applicant was: unprofessional and demeaning in his interactions with a subordinate sergeant; inappropriate in his “buddy-buddy” behavior with another subordinate; disloyal in that he did not tell his supervisor of a problem which resulted in his supervisor being “blindsided” by a higher ranking individual; and discourteous in that he often left his work area without telling anyone where he was going or how he could be reached.  The applicant was also counseled on his actions on 19 and 20 January 2006.  In that regard, the applicant was counseled that he was irresponsible in his drinking on 19 January 2006 while on temporary duty (TDY), that he did not show up on the scheduled time of departure the following day and had to be retrieved from his room, that he threw-up in the General Services Administration (GSA) van twice, and that he failed to turn in the GSA van upon his return from TDY and only turned in the van the following week when directed to do so (and didn’t tell GSA personnel that there was vomit in the van). 

3.  On 4 June 2006, the applicant was notified by the Director of Manpower and Personnel, Joint Force Headquarters, of his intent to recommend the applicant be involuntarily separated from the AGR program under the provisions of NGR 600-5, paragraph 6-5.  The Director stated that his recommendation was based on the applicant pointing a firearm at a civilian waiter and making threatening remarks to the waiter; carrying a privately owned concealed firearm on Government property in violation of Ike Skelton Training Site (ISTS) policy; transporting a privately owned concealed firearm in a Government vehicle with other Soldiers and an Airman; carrying a privately owned concealed firearm into a public bar; using inappropriate language; using prejudicial language to degrade another Soldier; consuming a significant amount of alcohol in a public bar while carrying a concealed firearm; pulling a concealed firearm from a holster, pointing it at a waiter, and making threatening remarks; failing to report for duty at the designated time on the day after he was in the bar; failing to turn in the Government vehicle upon return to ISTS or to inform the proper authorities of the vomit in the back seat and floor; and behavior disruptive to good order and discipline during the investigation into the incident.  The applicant was given 
15 days to reply in writing to the recommendation to separate him.

4.  On 14 June 2006, the applicant was given a letter of reprimand (LOR).  In that LOR it was stated that that based on the results of a commander’s inquiry and the sworn statements submitted as part of that investigation, the applicant was reprimanded for engaging in conduct unbecoming a noncommissioned officer (NCO) by failing to report for duty at a designated time, failing to report information when directed to do so by his supervisor, carrying a firearm into a lounge, possessing a firearm while intoxicated, exhibiting poor judgment by consuming alcoholic beverages to a level that resulted in his public intoxication, brandishing his personal firearm in a lounge, and creating a hostile work environment through numerous instances of unprofessional conduct in the work place.  The applicant was given the opportunity to respond to the LOR.  There is no evidence or indication that he responded.

5.  After requesting and receiving an extension to submit a reply to the recommendation to separate him, the applicant’s counsel responded on 10 July 2006.  In that response counsel outlines reasons why he believed that action to remove the applicant from active duty in the AGR program was inappropriate.

6.  On 2 August 2006, the Adjutant General of the Missouri Army National Guard, a major general, approved the applicant’s separation from active duty.

7.  Accordingly, on 31 October 2006, the applicant was released from active duty by reason of a pattern of misconduct, and he was transferred back to his status as a Guardsman not on extended active duty.  His service was characterized as under honorable conditions (general).

8.  In the processing of this case an advisory opinion was obtained from the National Guard Bureau (NGB), in which the mechanics of the applicant’s separation is briefly outlined.  The applicant was provided a copy of this advisory opinion and, on 3 January 2008, the applicant’s counsel responded.  In that response counsel requested specific documentation.  That request was sent to the NGB, who responded with the requested documentation, which was forwarded to the applicant by the Board’s staff.  

9.  On 1 February 2008, the applicant’s counsel responded.  In that response he submitted a copy of a memorandum dated 7 June 2006 which approved the applicant’s request for extension of the suspense date to submit comments and/or rebuttal to the recommendation to involuntarily separate him from active duty, a transmittal record which shows that the applicant submitted his rebuttal on 17 July 2006, and the certified mail receipt which shows that the rebuttal was mailed on 17 July 2006.  On 6 March 2006 the applicant’s counsel sent an e-mail to the Board’s staff stating that the NGB did not really address much of the information he requested, but he had nothing further to submit unless the NGB would provide greater detail.

10.  NGR 600-5, paragraph 6-5, provides the authority to separate Soldiers performing Full-Time National Guard Duty (FTNGD).  This paragraph specifies the reasons for such separation, the procedures to be used in processing a separation under these provisions, and the requirement for a Soldier be given 15 days from receipt of the involuntary separation memo to rebut or comment and return the rebuttal or comment to the commander who will forward the rebuttal through command channels to the Adjutant General who will make the decision on whether the Soldier is to be released from active duty.  This paragraph also states that the provisions of AR 135-18, paragraphs 5-1b(1) and 5-1c apply to Soldiers separated under these provisions.

11.  AR 135-18, paragraphs 5-1b(1) states that separation from the AGR Program, as prescribed by this regulation, is an all inclusive term which is applied to personnel actions resulting in REFRAD, discharge, retirement, dropped from the rolls (DFR), release from military control, death, or transfer/reassignment to the Individual Ready Reserve (IRR).  All separations, voluntary or involuntary, from the AGR program will be governed by the following regulations:  ARNGUS soldiers, released from FTNGD, while serving in the AGR program under the provisions (UP) of 32 USC are subject to separation UP of AR 135–175 (officers) or AR 135–178 (enlisted), or as further provided UP NGR 600–5.

12.  Army Regulation 135-178 provides the authority to separate Reservists from their status in the Army Reserve, whether it be from a TPU or from the Army Reserve itself.  It provides the authority to separate Soldiers for misconduct, fraudulent entry, erroneous enlistment, hardship, and other reasons.

13.  In the processing of this case, the Board’s staff contacted the proponent of AR 135-178 who stated that this regulation only applies to Soldiers performing FTNGD under Title 32 U.S. Code if they are being separated from their status as a Reserve of the Army in conjunction with their release from active duty.  He explained that AR 135-178 is only applicable to Soldiers being separated from their status as Reservists.
DISCUSSION AND CONCLUSIONS:

1.  Counsel’s primary contention is that the applicant’s separation from the AGR program was accomplished with a total failure to comply with NGR 600-5 since this regulation invokes the applicability of the provisions set forth in Army Regulation (AR) 135-18, and that regulation invokes the applicability of AR 135-178.

2.  While counsel is correct that NGR 600-5 invokes AR 135-178 through reference to AR 135-18, AR 135-178 only applies to the separation of Reservists from their status in the Army Reserve.  A thorough review of this regulation makes it abundantly clear that its purpose is to provide the authority to separate Reservists from their status in the Army Reserve, and does not apply to Soldiers being released from active duty and returned to their status as drilling reservists.  As such, the rights provided to Soldiers whose status as a drilling Reservist or Guardsman is in question are not applicable to Soldiers who are simply being released from active duty and returned to their status as Reservists or Guardsmen.

3.  Therefore, the only right the applicant was entitled to was the right to make a statement in his own behalf.  He was provided that right.

4.  The applicant was released from FTNGD due to allegations of him committing several acts of misconduct.  Under those circumstances, his release from FTNGD appears prudent and reasonable.

5.  In view of the foregoing, there is no basis for granting the applicant’s request or the alternative request by the applicant’s counsel.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X_____  __X_____  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.





      _________X_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070004481


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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