IN THE CASE OF:	  

		BOARD DATE:	       28 October 2008

		DOCKET NUMBER:  AR20080005781 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his involuntary release as an Active Guard Reserve (AGR) recruiter under Title 32, United States Code (USC) be set aside and that he be reinstated to the Florida Army National Guard (FLARNG) in AGR status with back pay and allowances.  He further requests that, if the FLARNG does not adopt such recommendation, that he be reinstated for AGR duty under Title 10, USC, in a comparable position with back pay and allowances.

2.  The applicant states that he is a decorated former Soldier who was once assigned to the 82nd Airborne Division.  He served as a recruiter with the FLARNG for 5 years from 2000 to 2005 and met his mission quota and received awards.  The separation proceedings for misconduct, that involved unlawful reprisal as a whistleblower, were set aside in February 2006, and he was favorably reinstated to recruiting duty.  The command ignored the applicant's bitter divorce, crippling mental health and depression, and financial ruin that caused him personal trauma.  The command refused the Inspector General's (IG's) recommendation that he receive stress and other remedial counseling, and refused him a temporary rehabilitative reassignment.  Seven months later, the command initiated an involuntary release action for failing to meet his recruiting quota due to a lack of motivation.  He was involuntarily released from active duty as an AGR recruiter with the FLARNG on 31 July 2007.  He contends that the FLARNG failed to provide him properly focused sustainment training, counseling statements, or remedial training, and failed to offer him other retention options as a last resort, and neglected to consider his extenuating circumstances.  The command also ignored the fact that, by March 2007, he had recovered and met his mission quota as a "top 5" in the state.  In January/February 2007, the FLARNG suddenly implemented safeguards and due process that would have directly benefited him.  This action confirmed that his release was unsupported.  

3.  The applicant provides no supporting documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that this Board make factual findings and conclusions, and recommend that the FLARNG to retroactively reinstate the applicant as of 31 July 2007 to Title 32 AGR status in an appropriate sergeant first class position in the Recruiting and Retention Battalion, as a retention noncommissioned officer (NCO), recruit sustainment program NCO, or recruiter.  Counsel further requests that the applicant be awarded back pay, allowances, and special duty assignment pay (SDAP) from his date of release of 31 July 2007; and that all derogatory files related to the involuntary release and reinstatement of the applicant be expunged from State, National Guard Bureau, and Federal military personnel files.  In the alternative, if the FLARNG does not adopt these recommendations, counsel requests that the Board retroactively reinstate the applicant into a comparable Federal Title 10 AGR status, with comparable assignment, back pay and allowances, SDAP, and the same records corrections.

2.  Counsel, in a 19-page statement, speaks to the applicant's military experience, saying that he is a highly versatile and decorated Soldier, who by July 2007, had accrued over 15 years of active duty.  As a decorated, former Regular Army Soldier, he enlisted into the FLARNG.  As an AGR Soldier, for a period of 5 years beginning in 2000, he received recruiting accolades and the "Master Badge" after consistently meeting recruiting mission goals every month.  

3.  Counsel states that the applicant served on active duty in the Regular Army from 1987 to 1995, when he was honorably discharged as a sergeant, pay grade E-5.  He subsequently enlisted in the Army Reserve and later in the Florida ARNG.

4.  Counsel states that in December 2000, the applicant was assigned for duty as an AGR recruiter.  In 2001 he received the "Mission Maker Club" award; in 2002, the "Retention Leadership Award" and the "Star Quality Award; in 2003, the "Recruiting Award and the "Star Quality Award"; and in 2004, the "Team 7 Retention and Recruiting NCO of the Year Award."  The applicant was promoted to staff sergeant, pay grade E-6 in 2003; and to sergeant first class, pay grade 
E-7 in 2005.  

5.  Counsel states that the applicant became a whistleblower during the period from August 2005 to February 2006, involving improper recruiting practices at senior levels in the FLARNG.  Because of the embarrassment to the command and its tarnished image of the FLARNG, the applicant suffered a gauntlet of reprisal, intimidation, and pariah status.  He was recommended for separation due to misconduct; placed on 7-months house arrest; and suspension of his SDAP.  In 2006, he was completely vindicated and the senior retention and recruiting officer and NCO were forced to leave the FLARNG.   

6.  Counsel states that in February 2006, the applicant was reinstated to recruiter duties.  The applicant had suffered a bitter divorce; child support issues; and financial catastrophe.  These events took a traumatic toll on his professional and personal life.  The IG recommended that he receive mental health counseling.  The applicant requested less stressful recruiting duties in the Recruit Sustainment Program.  The IG's recommendation for help and the applicant's request for less stressful duties were refused.  The applicant was ordered to resume his recruiting duties, now in a leadership role, and to make mission quota, all without skipping a beat.

7.  Counsel states that on 16 February 2006, the applicant's commander took the applicant to the Department of Veterans Affairs (VA) emergency room.   The VA records read: "Active duty member presents to ER for SI [suicide ideation] (brought in by CO).  Patient had been involved in investigation for past 7 months, cleared of all charges in Jan 06, but had to move to new recruiting location…feels overwhelmed by recent divorce, new job, worry about his job security, financial problems due to income cut off during investigation.  Having problems with focus, concentration, worries, labile mood [frequent drastic mood changes], tearful at times…[took 5 Xanax pills] passed out.  Friends found him.  Seeing private therapist…"  Counsel observes that, at this point, the applicant now faced the likelihood of burnout.  In early March 2006, he was prescribed Wellbutrin, an antidepressant medicine. 

8.  Counsel states that in March 2006, the applicant's chain of command added more stress on the applicant.  Because he was not meeting his recruiting quotas, he was given a rigid "office hours" schedule demanding about 10 hours each day, 6 days a week.  He was counseled on 29 March 2006 for not meeting his quota in February 2006.  Faced with this rigid "office hours" as a direct order, he had to curtail his plans for therapy, expanded mental health counseling, and financial counseling.  He later returned to the VA emergency room in December 2006 for depression, anxiety, panic attacks, and insomnia.  



9.  Counsel states that the applicant struggled to meet his mission quotas, but was unable to do so.  His symptoms became progressively worse.  He received adverse written counseling statements in July through September 2006.  However, counseling never focused on the underlying problems.  Retraining was misdirected at impersonal refreshers for technical skills of time management which a retention and recruiting NCO would already understand.  There was no sustainment training for improving attitude and motivation or remedial training focused on recruiter burnout, stress management, suicide prevention, or any training that focused on the "holistic well-being" of the Soldier.

10.  Counsel states that in October 2006, the applicant's supervisor recommended that the applicant be released from active duty due to his not meeting mission quotas.  The applicant submitted a rebuttal saying that his release was premature because he had not been afforded remedial training targeted to an individual Soldier and focused on specific weaknesses and performance deficiencies.

11.  Counsel states that in December 2006, the applicant returned to the VA Hospital Psychiatry Department where he requested counseling for on-going anxiety, panic attacks, insomnia, and medication adjustments.  He was diagnosed with an adjustment disorder with mixed mood depression and anxiety.  He was assigned therapy and continued treatment.  Wellbutrin was discontinued because it was aggravating his anxiety.  In February 2007, his antidepressants and other medications were changed and adjusted.  He was prescribed Lexapro and Lorazepam.  Consequently, his recruiting performance improved.

12.  Counsel states that in January 2007, the applicant's commander renewed the involuntary release recommendation.  Attached to this action was a statement by his supervisor stating that the applicant had spent an inordinate amount of time being retrained and had received an abundant amount of help from another NCO because he had been at home for a period of 7 months and was off production.  The NCO, who supposedly provided this training and help, refutes the accuracy of the supervisor's statement, stating that he was neither assigned nor provided such training.  Moreover, this individual was assigned to a different team.  The NCO had written a memorandum at the commander's request.  In this memorandum the NCO informed the commander about the command's past mistreatment of the applicant.  He spoke of the applicant's poor health and the command's neglect by disallowing him time for urgent stress or mental health counseling.



13.  Counsel states that the commander failed to report that this NCO had submitted a written recommendation.  It was not listed as an attachment.  Rather, the commander extracted, out of context, certain portions and made it appear they were mere verbal comments.  The commander had twisted the NCO's intent by making it appear that even a friend of the applicant was against his retention.  The effect was to deceive the applicant and to thwart a rebuttal opportunity.  This omission of favorable information by the recommending officer constitutes grounds to both disqualify the recommending officer and to void the involuntary release.

14.  Counsel states that the applicant at the time was not aware of the favorable statement, nor that it was withheld by the commander.  The applicant did not discover this deception until much later, when his release was approved.

15.  Counsel states that when the applicant's commanders subsequently learned that the applicant was in contact with the NCO who had written the favorable statement, the NCO was ordered to cease contact and to not cooperate with the applicant or his counsel, under the threat of reprisal.  The NCO stands by his facts and is willing to testify if called.  

16.  Counsel states that the applicant's commander raised [in the renewed recommendation for release] new charges of misconduct without any documentation.  The commander relied on verbal aspersions and hearsay that he asserted others had related to him.  There is no record of counseling, reprimand, or investigative findings that might suggest a form of remedial or corrective "instruction" for these new aspersions.  The commander alleged "that as a result of…a track record of dishonesty [in completing enlistment packets] the battalion commander commented to me personally…that he did not want [the applicant] working in the battalion."  With respect to these new charges of misconduct, there is no way the applicant could rebut an involuntary release for undocumented, un-investigated, and un-reprimanded incidents.  This not only was grossly unfair, but should have invalidated the involuntary release. 

17.  Counsel states that the Fiscal Year Accessions Data for the FLARNG, ending in April 2007, shows that the applicant had not only met mission but was "Top 5" for production in the State.  The applicant had finally recovered from his ordeal through his own efforts.  By late 2006 he had picked up the pace and production increased.  He had proved his commander wrong in thinking that there was no reason to believe his attitude/effort would improve.



18.  Counsel states that the applicant subsequently applied to the FLARNG for another recruiting position.  This was denied on the grounds that the FLARNG could only reassign him based on his secondary military occupational specialty (MOS) of 92G (Food Service), and that there were no AGR positions for food service in the state.  Counsel contends that this is false in that a Soldier's MOS is no barrier to AGR reassignment; the Soldier need only to have a proper profile and [qualifying] aptitude test scores. 

19.  Counsel states that on 14 June 2007, the National Guard Bureau IG denied the applicant's complaint, asserting that he had received counseling and remedial training; that this due process was wholly optional; and that the State could ignore it.  The IG argued that the State may reject wholly all the probation policies under National Guard Regulation (NGR) 601-1, dated 28 April 2006.  Counsel contends that the IG's opinion was obsolete and was not based on facts or legal support.

20.  Counsel states that on 31 July 2007, the applicant was involuntarily released from active duty.  He was given a reentry (RE) code of 3.  Because his MOS's were no barrier; he was able to find a drilling assignment with the 116th Field Artillery Regiment in the FLARNG.  

21.  Counsel states that the applicant's VA mental health treatment records ending in February 2008 show a great improvement.  He has maintained stability since February 2007; family doing well; depression subsided; and not VA rated for any mental health disability.  He regularly sees a psychiatrist and social worker, is optimistic, hopeful with regard to his life, and is maintained on a low dosage of Lexapro with Effexor, and an insomnia medication.  

22.  On 27 March 2008, counsel submitted additional arguments and documentary evidence.  To show how the commander had misrepresented the NCO's comments, he addresses the differences between the contents of an NCO's memorandum of support for the applicant and the commander's stated portions of the memorandum.   Counsel contends that the commander did not like the written statement so he paraphrased some of it, added some other "loaded" words on recruiting, and then deprived the applicant of the memorandum itself.  

23.  Counsel provides the following documentation with original application:
	
   a.  Memorandum, Subject: Recommendation for Involuntary Separation for Cause, from the FLARNG dated 29 August 2005, with enclosures;

	b.  Developmental Counseling Forms (DA Form4856) dated 29 March 2006; 26 July 2006; 11 September 2006; and 18 October 2006;
	
   c.  Request for Reenlistment or Extension in the Regular Army (DA Form 3340), dated 22 May 2006 and signed only by the applicant;

	d.  Oath of Extension of Enlistment or Reenlistment (DA Form 4836) dated 
23 May 2006 and signed by the applicant and certifying officer;

	e.  Memorandum, Subject: Time Management Plan and Directives, dated 
14 October 2006;

	f.  Military Occupational Specialty (MOS) Proficiency Training Plan, dated 
2 March 2006 with agenda, schedule, and sign-in sheets;

	g.  Memorandum, Subject: Recommendation for Involuntary Release for Cause, from the FLARNG dated 19 October 2006, with rebuttals and related memoranda;

	h.  Memoranda for Record, FLARNG, dated 5 and 31 January 2007, and
20 February 2007; 

	i.  Memorandum for Record, Florida ARNG, approving the applicant's separation from the AGR Program, dated 8 May 2007, with notification, orders, and Certificate of Release or Discharge from Active Duty (DD Form 214);

	j.  Letter, National Guard Bureau, Office of the IG, dated 14 June 2007;

	k.  Army Times news article titled: Tough Recruiting Times, dated 6 August 2007;

	l.  Noncommissioned Officer Evaluation Reports (NCOER) for the periods from December 2002 through October 2003; November 2003 through September 2004; October 2004 through September 2005; and October through December 2005;

	m.  Photographs of the applicant and his recruiting awards for 2001, 2002, 2003, and 2004;

	n.  VA medical progress notes for the period from 16 February 2006 through
8 February 2008; and

	o.  Letter, Social Worker, Sarasota, Florida, Subject: Treatment Summary, undated.

24.  Counsel provided the following documentation subsequent to the original application:

	a.  Memorandum for Record, Recruiting and Retention NCO, FLARNG, dated 8 December 2006;

	b.  Memorandum for Commander, 164th Air Defense Artillery Brigade, FLARNG, dated 7 March 2008;

	c.  Orders 086-046, FLARNG, dated 26 March 2008, reassigning the applicant from the 116th Field Artillery Regiment to the 715th Military Police Company; and

	d.  Orders 086-045, FLARNG, dated 26 March 2008, promoting the applicant to sergeant first class, pay grade E-7.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, 28 January 2008, the applicant was a sergeant first class, pay grade E-7, FLARNG, assigned to the 116th Field Artillery Regiment.

2.  On 25 June 1987, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).  He served in a variety of assignments both in the United States and overseas.  On 4 August 1995, he was honorably released from active duty due to completion of required active service.  He was immediately transferred to the 231st Transportation Company, United States Army Reserve (USAR) in St. Petersburg, Florida.  He had attained the rank of sergeant, pay grade E-5, and had completed 8 years, 1 month, and 10 days of creditable active duty service. 

3.  The applicant served as a member of that Troop Program Unit from 5 August 1995 to 26 April 2000.  On 27 April 2000, he was transferred to the USAR Control Group (Reinforcement).

4.  On 19 June 2000, the applicant enlisted in the Florida ARNG.  He was assigned on 5 December 2000, to active duty under title 32, USC, under the control of The Adjutant General, State of Florida for AGR duty with the Recruiting and Retention Command.
5.  On 29 August 2005, the applicant's commander recommended that he be involuntarily separated for cause due to inappropriate professional and personal conduct, moral and professional dereliction, and substandard duty performance.  The commander specifically cited as reasons for his recommendation the following:

	a.  assisting with generating and using fraudulent parental consents for the purpose of enlisting an applicant;

	b.  offering to coordinate a doctor visit for an applicant for the purpose of getting her discharged from the FLARNG;

	c.  lying to his chain of command; and

	d.  using another service's enlistment documents without validating information.

6.  On 21 September 2005, the applicant submitted a rebuttal to the commander's recommendation for involuntary separation denying the allegations.

7.  On 25 January 2006, the IG wrote a letter to the applicant.  He stated that, in response to his complaint, all discharge actions had been terminated and, since he was back at work as a recruiter, all aspects of his complaint had been satisfactorily resolved.

8.  On 30 March 2006, the applicant received a quarterly performance counseling.  It stated that, until the applicant could show he was capable of managing his recruiting office and making good decisions, his supervisor would help him manage his daily plan.  The applicant's supervisor immediately required that he maintain an effective planner and to keep specific Monday through Saturday office hours.  The applicant agreed to these requirements.

9.  On 22 May 2006, the applicant completed a request for extension of his AGR tour.  The commander's portion of this request shows the approval block was checked but the form is not signed or dated by the commander.  On 23 May 2006, the applicant signed an Oath of Extension (DA Form 4836) indicating his continued duty as a member of the FLARNG and Reserve of the Army until 
18 June 2012.  The form was certified by a commissioned officer.

10.  On 26 July 2006, the applicant received performance counseling for the months of June and July 2006.  The applicant was informed that he was being removed from a leadership role as a senior recruiting and retention NCO 

because he had not taken his duties seriously.  He was told that he must get his personal affairs in order and to stop making excuses for not carrying out his duties.  He was instructed that, effective immediately, he was required to call his supervisor at the start and end of every duty day to provide an update on his progress.  He was further instructed to develop his plan of action, get out to his high schools, and to talk with his units during every drill weekend.  The applicant disagreed with the counseling.  His handwriting is not sufficiently legible to read the stated basis for his disagreement.

11.  On 11 September 2006, the applicant received performance counseling for the month of August 2006.  The counselor stated that he had given all the pep talks that he could muster.  "Enough had been said."  The applicant had sought out advice and ideas from many people to include his supervisor, but had continued to refuse to do telephonic prospecting.  He was directed to call his supervisor at 0830 hours every morning to brief his daily plan and at 1800 hours every afternoon to critique his day's events and plan for the next duty day.  The applicant agreed with the counselor.

12.  On 18 October 2006, the applicant received a 2006 end of recruiting year performance counseling.  The counselor concluded that for the good of the recruiting team and the FLARNG, that the applicant should be removed from the recruiting force.  The counselor stated that he had attempted on almost a daily basis to get the applicant to where he needed to be.  The applicant had either become belligerent and insubordinate or gave lip service to the counseling and then rejected what was said.  The applicant was further informed that this was only a recommendation and that he was to continue in his assigned duties.  He was still required to call his supervisor each morning and afternoon.  The applicant disagreed with the counseling stating that for over a year the recruiting and retention force had let him down in several ways.  Most of his handwritten statement is illegible.

13.  On 19 October 2006, the applicant's commander informed him of his recommendation to involuntarily release him from the recruiting and retention force for cause.  The commander cited that the applicant had been unsuccessful in achieving his assigned recruiting mission and failed to demonstrate that he was making a serious effort towards becoming successful.  The applicant had enlisted only three new Soldiers to the FLARNG since February 2006.  Counseling sessions dating back to 29 March 2006 documented that he had consistently not done the things required to be successful.   The commander acknowledged the applicant's feeling that he had been wrongfully treated by the previous leadership but that, since his reinstatement in February 2006, he had not done his part to reestablish himself as a successful member of the 
organization.  It was not fair to the team or the district to have to make up the difference between the applicant's assigned mission and what he had actually produced.

14.  On 28 October 2006, the applicant submitted his rebuttal to the commander's recommendation to involuntarily release him for cause.   He reminded the commander of his military background by pointing out that he had served in the Regular Army from 1987 to 1995; completed the Basic Airborne Course; been assigned with the 82nd Airborne Division; and had participated in deployments to Honduras and Desert Shield/Desert Storm.  He spoke of his many awards for making his recruiting goals for the 5 years from 2000 to 2005.  He acknowledged that he had not met goals for the last part of fiscal year 2006.  He contended that the true reason for the initiation of his involuntary release was not because of his failing to make mission.  He believed that he was being singled out and treated unfairly for other reasons.  Furthermore, he stated that the individuals who had initiated this separation action had failed to follow Army regulations.  He asked that he be retained in his current position.  Failing that, he requested that his proposed separation be considered by a disinterested administrative review board.

	a.  The applicant also stated that on 13 October 2006 he was put in for attendance at the Advanced NCO Course.

	b.  The applicant contended that the motive for the involuntary separation was retaliation for his fiancé calling the recruiting command on 17 October 2006, to complain about his being put on  "office hours."   He stated that the recruiting command had a policy of not imposing office hours and her call had resulted in the applicant, and everyone else being taken off of office hours.

	c.  The applicant stated that on 18 October 2006 he received a counseling statement for being insubordinate.  He contended that this statement did not provide details about how he was insubordinate and that when he confronted his supervisor no substantiation was provided.  

	d.  On 19 October 2006, he was informed of the decision to involuntarily release him from recruiting duty.  He contended that the proximity of events; his fiancé's phone call on 17 October 2006, the counseling statement on 18 October 2006, and the decision to release him from recruiting duty shows that the motive was retaliation.

	e.  The applicant acknowledged that he had not met his recruiting goals for fiscal year 2006.  He contended that it was hard for him to achieve his goal due to the fear of command retaliation for his being cleared of all earlier charges.  Also, his second divorce had occurred at the same time that he thought he was going to be released from recruiting.  He further contended that his not meeting his goals was due to recruiting in a new area and getting reestablished in schools that had not been worked; due to being put on a new team; due to fear that the command had not changed, and due to the let down by the command. 

	f.  The applicant stated that he had enlisted two new Soldiers as of October 2006 and had numerous other prospects in the works.  He contended that he had overcome some of the negative factors that had contributed to his not meeting his recruiting goals in fiscal year 2006.  

15.  On 9 November 2006, the applicant's supervisor wrote a memorandum for record stating that he had provided the applicant with remedial training to improve his proficiency as a recruiter.  

   a.  He had taken the applicant to all of his high schools to ensure that he knew where they located and to develop points of contact.  
   
   b.  The supervisor stated that the applicant had spent an inordinate amount of time in Sarasota, Florida being retrained. 
   
   c.  The supervisor stated that, during his attempts to uncover the reason for the applicant's lack of proficiency, he began to realize that it had nothing to do with his MOS proficiency; rather, it had to do with his character.  The supervisor found himself counseling the applicant on such things as not having money for gas and needing a car [in addition to his motorcycle] to get to work when it was raining; wanting to marry his girlfriend who is not yet divorced; cleaning up his finances so he can buy a house; and his dogs living with his former wife who needed surgery.  The supervisor stated that, every time he attempted to assist the applicant with getting control of his recruiting program, the applicant needed to go see his counselor because he was "stressed out."  The supervisor contended that he spent a great deal of time attempting to locate the applicant, sometimes for days on end, only to hear the applicant's excuse for having to leave early for some personal reason that required his immediate attention.   The supervisor stated that he attempted for months on end to assist the applicant in getting his personal affairs in order.

16.  On 25 January 2007, the applicant 's commander submitted the recommendation for involuntary release for cause through the chain of command based on the applicant's unsatisfactory duty performance.   


17.  On 3 February 2007, the applicant wrote a memorandum in rebuttal to his commander's recommendation for involuntary release.  He concluded that his original rebuttal was substantial enough to cause the chain of command to second guess the request for involuntary release.  As a result, the commander dug for more derogatory information to support his cause.  He alleged that the commander had requested the applicant's supervisor write a critical memorandum about him.  Additionally, the commander referred to conversations with fellow Soldiers.  The applicant claimed his supervisor's 9 November 2007 memorandum was not supported by any counseling statements.  

18.  On 16 May 2007, the AGR Manager, FLARNG wrote a memorandum through the chain of command to the applicant officially notifying him of his involuntary separation from the FLARNG AGR Program, with a termination date of 31 July 2007.  

19.  On 14 June 2007, the IG, National Guard Bureau, responded to the applicant regarding his complaint that his release was due to retaliation.  The IG stated that a review had found no violation of a standard, policy, regulation, or statute.  On the contrary, there was every indication that the FLARNG had done more than what was required by the applicable standards.  

20.  Accordingly, the applicant was released from active duty on 31 July 2007.  The narrative reason for separation was for completion of required active service.  He was given a separation code of LBK (involuntary separation) and a reentry code of 3.  He had completed 4 years and 3 months of creditable active duty service during this period.

21.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia.  It stated that according to National Guard Regulation (NGR) 600-5 (The AGR Program), paragraph 6-5 (2); when deciding whether to initiate procedures for involuntary separation, the following factors may be considered: 

   a.  the seriousness of the events or conditions that form the basis for initiation of separation proceedings, including the effect of the member's continued retention on military discipline, good order, and morale; 
   
   b.  the likelihood that the events or conditions will continue or recur; 
   
   c.  whether the actions of the member resulted or are likely to result in an adverse impact on accomplishment of unit missions; 
   
   d.  the member's ability to perform full-time support duties in a  reasonable manner; 
   
   e.  the member's potential for further service; 
   
   f.  the member's military record including past contribution to the ARNG, assignment, awards and decorations, evaluations, ratings, letters of commendation, letters of reprimand or admonition, counseling records, records of nonjudicial punishment, and records of involvement with civilian authorities; and any other matter deemed relevant by the separation authority; and 
   
   g.  the possibility of reassigning the member.   

22.  The opinion further stated that NGR 600-1, paragraph 2-18, provides that recruiting and retention (RR) NCO's are the backbone of the RR organization.  Every effort should be made to ensure that they are adequately trained and supported to accomplish their assigned three tenet strength management (SM) mission.  Additionally, paragraph 4-8, clearly states the mission requirements of a recruiter.  It advocates that each RR sergeant major, RR noncommissioned officer in charge, RR NCO, officer strength management manager, and Army Medical Department strength manager must be assigned an SM mission that includes the three basic tenets of the SM program.  The three basic tenets include recruiting quality Soldiers, attrition management designed to reduce unprogrammed loss of Soldiers under contractual military service obligation (MSO), and retention and extension of quality Soldiers at their expiration of term of service (ETS).  The SM mission is assigned as an individual, region, or area mission, depending on the Soldier's duty assignment.  The applicant's previous allegations that go against this mission may have also been a contributing factor that influenced the decision to implement involuntary separation proceedings.  Additionally, this previous allegation may have put the applicant on guard and aggravated his condition and stability as a recruiter.

23.  The opinion recommended partial relief by reinstating the applicant back into the FLARNG AGR program as a recruiting and retention NCO.  It further stipulated that the assignment should be in a different area than his previous AGR assignment.  It based this recommendation on the Florida ARNG's failure to acknowledge the applicant's medical condition during his period of his inability to meet mission requirements.  

24.  The opinion recommended disapproval of the applicant's request to have his involuntary separation set aside and to receive back pay, allowances, and SDAP.   While the FLARNG may not have considered the applicant's medical condition in 
the processing of his involuntary separation, the FLARNG did follow proper procedures in accordance with NGR 601-1, NGR 600-5, and Army Regulation 135-178.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant had met or exceeded the performance standards as a recruiter for a period of 5 years from 2000 to 2005.  However, during the period from about February to October 2006 his performance of duty was not up to standards, resulting in a recommendation that he be involuntarily released from the AGR recruiting program.  Accordingly, he was released effective 31 July 2007.

2.  The applicant contends that his release was due to retaliation based on his fiancé's complaint.  The IG investigated and found no wrongdoing on the part of the FLARNG regarding the process for his release from the AGR program.

3.  The applicant's substandard performance of duty was documented in four counseling statements that clearly showed he was not meeting the expectations of his supervisor.      

4.  The applicant argues that the stress of the job was more than his mental condition could handle, and that his chain of command did not provide the help and support he needed to overcome his mental problems.  He contends that during the last few months, on his own, he had managed to overcome his difficulties and had started to make his recruiting quota.  His recent improvement in performance failed to overcome his many months of non-production. It was too little, too late, to inspire command confidence that he could or would continue to perform to standard.

5.  The advisory opinion recommends that the applicant be reinstated into the AGR program because the FLARNG may not have considered his medical condition in the processing of his release.  There is nothing preventing the applicant from requesting reinstatement into the AGR program, or the FLARNG from acting favorably on such as request if they think he is now worthy of reinstatement.

6.  In view of the above, the applicant's request should be denied. 





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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005781



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ABCMR Record of Proceedings (cont)                                         AR20080005781



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