RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20070006110 


	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

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Ernestine I. Fields

Member

Mr. Randolph J. Fleming

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, through counsel, reconsideration of the Board's denial of his request to be reinstated as a commissioned officer in the Texas Army National Guard (TXARNG) with promotion to an appropriate rank, and all pay and benefits to which this correction will necessitate.

2.  The applicant states, in effect, through counsel, that he was unjustly denied his due process rights and was discharged from the TXARNG without the benefit of any hearing of any type.

3.  The applicant provides a copy of a letter from Counsel, dated 27 April 2007.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board reconsider the applicant's request for reinstatement in the TXARNG as a commissioned officer with all pay and benefits.

2.  Counsel states, in effect, that the incident that triggered a series of events which led to the applicant discharge from the ARNG was a disagreement between the applicant, who was a company executive officer at the time, and the Battalion Commander regarding the discipline that the applicant had used to correct a Soldier who was sleeping on a perimeter during an annual training exercise. 

3.  Counsel continues that the applicant has attempted on numerous occasions to correct this situation since it occurred and he also immediately appealed his unlawful discharge to the Adjutant General of the State of Texas, who then agreed to reinstate him to the TXARNG.  The applicant did everything in his power to correct the injustice that had been done to him.  These attempts are not from an officer who voluntarily resigned his commission.  

4.  Counsel requests that reconsideration be based on two separate errors contained in the Board's original consideration.  The first error was the statement that the applicant had resigned his ARNG commission because he thought he would do better in the U.S. Army Reserve Control Group as an Individual Ready Reserve.  The second error was the statement that the applicant was afforded the opportunity to enlist in the TXARNG in an enlisted status and not as a National Guard commissioned officer.  Those errors resulted in the Board denying relief based on a mistaken understanding of the facts, which led to an improper application of the regulations.

5.  Counsel further states, in effect, that the applicant’s service prior to this incident was exemplary and that the applicant is currently serving in the TXARNG in the pay grade of E-6.  The applicant is currently deployed to Iraq.

6.  Counsel provides on the behalf of the applicant two affidavits and several copies of written letters addressed to the Inspector General, members of Congress, local government officials, and the President of the United States.  The majority of the letters state that the applicant was unjustly and illegally discharged from the TXARNG in violation of Army Regulations and was denied his due process rights.

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 AR20050005376, on 4 May 2006.

2.  In the original decision the ABCMR found that in the absence of evidence to the contrary, the applicant was properly discharged from the ARNG.

3.  The applicant has provided new evidence which requires that his case be reconsidered by the ABCMR.

4.  The applicant alluded to statements that a colonel G_ _ _ _n had made indicating his desire not to have him reinstated into the TXARNG and that the commanders of the Troop Command or the 49th Division desire not to have him in their organizations.  The applicant states that the decision to reinstate an individual into the TXARNG rest solely with the Adjutant General of the State of Texas.

5.  The applicant alluded to a telephone conversation he had with colonel H_ _ _ _ _ _ _ _ n concerning the possibility of a vacant position in the 143rd Airborne unit in Houston, Texas.  However, colonel H_ _ _ _ _ _ _ _ n had to wait on an answer from the Adjutant General's office for approval to place the applicant in a possible vacant slot.  The applicant never received an answer from the Adjutant General's office.

6.  TXARNG Regulation 635-100, Administrative Discharge of Officers and Warrant Officers, provides in paragraph 4, that officers who are substandard in performance of duty or conduct, deficient in character, lacking the professional qualifications or status, or otherwise unsuited for continued military service are not to be retained in the TXARNG.  Presence of one or more of those conditions will be sufficient basis for the administrative discharge of an officer from the TXARNG.  Paragraph 5 of that regulation provides, in pertinent part, that commanders of units below the Adjutant General level may request the resignation of individuals officers due to reasons indicated in paragraph 4.  An individual processed under that regulation who feels his commander is unjustified in requesting administrative discharge may appeal to the Adjutant General of Texas for a review of his or her case.  The Adjutant General may appoint a board of officers to investigate the appeal and provide pertinent recommendations based on the findings of the board.  The Adjutant General of Texas may cause the administrative discharge of an officer for reasons indicated in paragraph  
4 without the request or recommendation of an intermediate commander.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through counsel that he should be reinstated into the TXARNG as a commissioned officer with promotion to an appropriate rank, and all pay and benefits to which he is entitled to as a result of this correction.

2.  There is no evidence that the applicant was unjustly or illegally discharged from the TXARNG.  The applicant received a relief for cause officer evaluation report for substandard performance of duty.  

3.  Records show that an officer who is substandard in performance of duty is subject to discharge from the ARNG.  The State Adjutant General of Texas had the option to appoint a board of officers to investigate an appeal to the applicant's commander's recommendation to discharge him.  However, there is no evidence of an appeal in the applicant's official military personnel file.  Therefore, there was no requirement to offer the applicant a hearing prior to his discharge.

4.  As such, it must be presumed that he was properly discharged from the TXARNG due to substandard performance of duty and he was further discharged from the USAR due to his being twice nonselected for promotion to the rank of captain.

5.  The applicant states that he was promised to be reinstated by the TXARNG.  If the command promised the applicant reinstatement, it appears it was contingent on there being a vacant slot available.  Apparently, there was no acceptable slot available.

6.  Counsel reiterated in his statements that the Board made two errors contained in the Board's original consideration.  Those errors resulted in the Board denying relief based on a mistaken understanding of the facts, which led to an improper application of the regulations is noted.  However, there is no indication that the previous Board relied upon any incorrect facts or improper procedures in reaching its conclusion.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____rjf___  ____eif__  ___lds___  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 AR20050005376, dated 4 May 2006.




__________Linda D. Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20070006110
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070807
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.