IN THE CASE OF:	

		BOARD DATE:	25 August 2009  

		DOCKET NUMBER:  AR20090003467 


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 to be credited with 6 years, 7 months, and 1 day of active service due to his incorrect discharge from the Active Guard Reserve (AGR) program.

2.  The applicant states that he believes his separation from the Indiana Army National Guard (INARNG) AGR program was inappropriately handled and that if he had been properly briefed, the result would have been his continuation in the AGR program.  He also chronicles the events that led to his discharge as follows:

	a.  on 27 January 1991, he was notified that his AGR position was being eliminated but his chain of command gave him vague information regarding this situation and did not provide him with options.  He approached his battalion commander and suggested that since he was going to attend schooling for a different specialty, he believed that attending the Primary Leadership Development Course (PLDC) was a waste of the Army's money; 

	b.  he was notified that since he cancelled this course, he would be eliminated from the AGR program but was not told that the reason for his separation would be the derogatory "unsatisfactory performance."  He then researched the governing regulation and typed the appropriate separation notifications himself as his chain of command was not aware of the procedure.  He was then not given sufficient time to outprocess and objected to the use of "unsatisfactory performance" as the reason for his separation but his concern was not addressed by his chain of command.  He then sought help from a Member of Congress; but, when his chain of command found out, he felt threatened and decided to drop the issue for fear of reprisal;

	c.  his chain of command did not act in accordance with the regulation which resulted in his unwarranted and needless separation from the AGR program.  Nevertheless, he remained a member of the INARNG until he was discharged and he then joined the U.S. Air Force (USAF) and was selected for an AGR program within that component; and

	d.  the situation was created by the Indiana Army national Guard (INARNG) and he therefore should be credited with the 6 years, 7 months, and 1 day worth of points that he would have accrued if he had remained in the AGR.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 1991 and 17 July 1984; a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of service), dated 20 November 1996; a copy of an involuntary separation from the AGR program packet; and a copy of temporary duty (TDY) orders, dated 18 October 1990, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior service in the USAF, the applicant's records show he enlisted in the INARNG on 21 November 1985 and held several military occupational specialties including 75B (Personnel Administration Specialist), 31U (Signal Support Systems Specialist), and 92Y (Supply Specialist).  The highest rank/grade he attained during this period of military service was sergeant (SGT)/E-5.

3.  The applicant's records also show he entered the AGR program on 1 February 1986.  He was assigned to Battery E, 139th Field Artillery, Indianapolis, IN.

4.  On 4 April 1991, the applicant's immediate commander notified him of his intent to recommend him for involuntary separation from the AGR program for his failure to complete the professional development program (PDP) (completion of the Primary Leadership Development Course) as required by paragraph 6-4a(8) of National Guard Regulation (NGR) 600-5 (The Active Guard/Reserve (AGR) program, Title 32, Full-Time National Guard Duty FTNGD)).  The applicant's immediate commander also indicated that the applicant was provided with an ample opportunity to complete the required PDP 

5.  On 4 April 1991, the applicant acknowledged receipt of the separation memorandum and acknowledged that he had not been able to complete the PDP requirements due to family problems.  He also indicated that he understood that his AGR position had been designated as an excess position and that in order to remain the AGR program he had to complete the PDP requirements and apply for and be selected for a different position.

6.  On 4 April 1991, the applicant's immediate commander initiated involuntary separation from the AGR action against the applicant for failure to complete the PDP requirements.  

7. On 30 May 1991, by memorandum, the applicant's senior commander notified him that he was being referred to The Adjutant General of Indiana for mandatory separation (without board appearance) from the AGR program for failure to comply with the ARNG PDP.  He further recommended a separation date of 30 June 1991.

8.  On 3 June 1991, The Adjutant General of Indiana approved the applicant's mandatory separation from the AGR program effective 30 June 1991.  

9.  The applicant's records show he was honorably released from active duty to the control of his ARNG unit on 30 June 1991 in accordance with chapter 6 of NGR 600-5 by reason of unsatisfactory performance (failure to complete active duty PLDC).  The DD Form 214 he was issued shows he completed 5 years and 5 months of creditable active service during this period. 

10.  The applicant's records further show that following his discharge from the AGR program, the applicant continued to serve in the INARNG until he was discharged on 20 November 1996 by reason of expiration of his term of service (ETS).
10.  An advisory opinion was obtained on 26 July 2009 in the processing of this case.  The Chief, Personnel Division, National Guard Bureau, recommended disapproval of the applicant's request for 6 years, 7 months, and 1 day of active service credit.  The Chief added that:

   a.  the applicant was properly notified and discharged from the AGR program for failure to complete the required PDP.  Following his discharge, he continued to serve in the INARNG until his discharge on 20 November 1996 by reason of ETS;

	b.  he was provided with two opportunities to attend PLDC.  On 28 May 1989, he started PLDC but was released two days into the course due to personal problems.  Additionally, he was issued an order on 28 November 1990 directing him to attend PLDC beginning on 18 April 1991 and the applicant indicated that he understood that the course was required for his continuation in the AGR program; however, he requested to cancel this course due to a reduction in the INARNG AGR force; 

	c.  he was notified on 27 January 1991 of the projected reduction of AGR positions and that his position was identified for elimination but no one from his chain of command instructed or ordered him to withdraw from the course.  He reasoned that if he was identified for a potential reduction in force, it was not economically feasible for the INARNG to have him attend the active duty PLDC at Fort Knox; and

	d. he was notified of the intent to separate him on 4 April 1991 for failure to complete the PDP in accordance with NGR 600-5.  This regulation states that AGR Soldiers will be separated without board action for reasons stated below regardless of their expiration dates of their current period of duty.  Retention was not authorized and separation for cause procedures need not be used.  He was given the required 30 day notice and he acknowledged receipt of the separation memorandum on 4 April 1991.  He was notified that The Adjutant General approved his separation on 3 June 1991 and he was accordingly separated on 30 June 199.  He was aware of the facts at the time and there was never a fear of retribution.  His discharge was conducted in accordance with applicable regulation.   

11.  On 7 August 2009, the applicant submitted a rebuttal to the advisory opinion in which he states that his chain of command failed to follow virtually any of the guidance in NGR 600-5 and that he used his own resources (computer) to type the notification memorandums.  He adds that he had also cancelled other military training courses at the time and that he had discussed this action with his battalion commander.  Since he had no prospect of another AGR position and since no one talked to him about the possibility of moving to another position, he was left to fend for himself at every step.  He also adds that the reason he dropped out of PLDC was due to an emergency situation when his wife fell down the stairs and injured her neck.  He concludes that with respect to the retribution, the same people who handled his separation also handled administrative tasks within the State.

12.  NGR 600-5 prescribes policies and procedures for management of ARNG Soldiers in the AGR program who serve on FTNGD under Title 32.  Paragraph  6-4 of this regulation states, in pertinent part, that AGR Soldiers will be separated without Board action for failure to successfully complete the PDP requirements regardless of the expiration dates of their current periods of duty.  Retention is not authorized.  Separation for cause procedures need not be used.  Soldiers will be given at least 30 days notice of separation.  AGR Soldiers will not be separated under provisions of this paragraph until final approval by The Adjutant General.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be credited with 6 years, 7 months, and 1 day of active service due to his incorrect discharge from the AGR program.

2.  The evidence of record shows that the applicant failed to complete the required military training course required for his grade.  Accordingly, his chain of command notified him of the contemplated separation action.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to the requested relief.







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)                                         AR20090003467



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ABCMR Record of Proceedings (cont)                                         AR20090003467



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