IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090004612 


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 submits his request through counsel.

2.  The applicant defers his statement to counsel.

3.  The applicant provides additional documentary evidence through counsel in support of his request. 

4.  The applicant’s request for reinstatement as an officer in the Texas Army National Guard (TXARNG) was considered and denied by the Army Board for Correction of Military Records (ABCMR) on 4 May 2006.  The applicant then requested reconsideration by the ABCMR on 7 August 2007.  His request for reinstatement was again denied.  Thereafter, the applicant made two additional requests for reconsideration which were denied without Board review on
18 March 2008 and 17 September 2008.  In each case, the applicant was advised to seek relief in a court of appropriate jurisdiction.

5.  On 20 February 2009, the Government filed a Consent Motion for a Voluntary Remand of the applicant's case to the ABCMR for further action.  The U. S. District Court for the District of Columbia, on 25 February 2009, ordered the Government's motion to remand be granted and the case be returned to the ABCMR for further consideration.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the ABCMR reconsider its previous denials and grant the applicant’s reinstatement in the TXARNG in the rank/grade of captain (CPT)/O-3 retroactive to his “unlawful” discharge on 14 July 1993; award him the differential between his current pay as a staff sergeant (SSG)/E-6 and the pay of a CPT retroactive to 14 July 1993; award him all benefits, allowances, and entitlements he would have received at the rank of CPT from 14 July 1993 to the present; and award him credit for time served in the rank of CPT from 14 July 1993 to the present.

2.  Counsel states prior to the applicant’s commissioned service in the TXARNG, he previously served as an enlisted Sailor in the U.S. Navy (USN) and as an enlisted Soldier in the Washington Army National Guard (WAARNG).  While serving as a first lieutenant (1LT)/O-2 in 1993, the TXARNG alleged the applicant mistreated an enlisted Soldier.  On 27 June 1993, he was issued an adverse, relief-for-cause Officer Evaluation Report (OER) which addressed the alleged mistreatment.  The OER eventually led to his “unlawful” discharge from the TXARNG.

3.  Counsel also states that the applicant appealed to the ABCMR in 1994; however, the Board denied his request because he had not exhausted his administrative remedies through the TXARNG.  He again sought relief in May 2006; however, the Board denied his request for relief.  He subsequently submitted a request for reconsideration through counsel arguing that he was not afforded a due process hearing as required by Army regulations at the time; however, the Board again denied his request.  Counsel adds that the applicant’s current application contains new material evidence and argument not previously considered by the Board.  The new evidence consists of statutory law promulgated by the Texas State Legislature.  Specifically, counsel argues that:

	a.  the TXARNG violated the Texas Government Code by separating the applicant without a due process hearing; 

	b.  the TXARNG violated the applicant’s right to due process of law under the U.S. Constitution and the State of Texas Constitution;

	c.  TXARNG Regulation 635-100 (Administrative Discharge of Officers and Warrant Officers) was incompatible with Federal and State law and not applicable to the applicant’s case; 


	d.  the ABCMR previously engaged in and relied on ex parte communications in violation of law; 

	e.  the applicant was not afforded fairness required by Army Regulation 
135-175 (Separation of Officers); and

	f.  the doctrine of precedent requires the granting of the requested relief.

4.  Counsel provides the following additional documentary evidence in support of the applicant’s request:

	a.  copies of the ABCMR’s previous Records of Proceedings, dated 7 August 2007 and 10 May 2006; 

	b.  a copy of the Texas Court of Appeals decision, Number 03-94-00612-CV, Cole v. TXARNG, filed on 12 July 1995; 

	c.  a copy of the Texas Court of Appeals decision, Number 03-01-00358-CV, Gough v. TXARNG, filed on 25 January 2002; 

	d.  a copy of the ABCMR’s previous correspondence to the applicant, dated 15 October 1996; 

	e.  a copy of a previously submitted self-authored letter, dated 27 April 2007, from the applicant’s counsel to the ABCMR; 

	f.  two copies of chapter 1021 of the State of Texas Senate Bill 353, dated (approved by the State of Texas Governor on) 19 June 1997; 

	g.  a copy of the Texas Court of Appeals decision, Number 03-00-00634-CV, Amos v. TXARNG, filed on 29 June 2001; 

	h.  a copy of a previously submitted DA Form 4187 (Personnel Action), dated 28 June 1993; 

	i.  a copy of the U.S. Court of Federal Claims decision, Number 90-4025C, filed on 1 September 1993; 

	j.  a copy of the U.S. Court of Federal Claims decision, Number 99-883C, filed on 22 June 2005;

	k.  a copy of the U.S. Court for the Eastern District of North Carolina, Western Division, Number 5:04-CV-459-FL(1), Parrish v. Acting Secretary of the Army, filed and decided on 10 September 2004; 

	l.  a copy of Article 1 (Bill of Rights) of the Constitution of the State of Texas; and,

	m.  a copy of the Court of Appeals of Texas, Fourth District, San Antonio, Number 04-06-00547-CV, Manley v. Texas Department of Public Safety, delivered and filed on 31 January 2007. 

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 ABCMR in Docket Number AR20050005376 on 4 May 2006 and Docket Number AR20070006110 on 7 August 2007.  

2.  With prior enlisted service in the USN and the U.S. Navy Reserve (USNR), the applicant’s records show he enlisted in the TXARNG on 10 June 1982.  However, he was discharged in the rank/grade of specialist five (SP5)/E-5 on 29 September 1982 for the purpose of enlistment in the USN.  He subsequently enlisted in the USN on 7 October 1982 and served until he was honorably discharged on 6 October 1986.  

3.  On 14 November 1986, the applicant enlisted in the WAARNG in the rank/grade of staff sergeant (SSG)/E-6 for a period of 1 year.  He was assigned to Company D, 3rd Battalion, 161st Infantry, Kent, WA.  His records further show that on 20 March 1987, he requested and was authorized an interstate transfer to the TXARNG.  He was assigned to Company A, 136th Signal Battalion, Houston, TX, where he attended Army National Guard Officer Candidate School (OCS).  His records show he graduated from OCS and was honorably discharged and transferred to the U.S. Army Reserve (USAR) Control Group on 17 June 1988 in order to accept an appointment as a second lieutenant (2LT)/O-1.

4.  The applicant’s records further show he was appointed as a 2LT, Infantry, in the TXARNG on 18 June 1988 and was assigned to A Company, 3rd Battalion, 141st Infantry, Brownsville, TX, as a platoon leader.

5.  On 3 December 1990, the applicant was reassigned from his duties as a motor officer and assigned as the company executive officer of Headquarters and Headquarters Company, 3rd Battalion, 141st Infantry.

6.  On 7 December 1990, the applicant was ordered to active duty in support of Operations Desert Shield/Desert Storm for a period of 180 days.  He was released from active duty to the control of his ARNG unit on 4 May 1991 (later amended to read 16 July 1991).  He was subsequently promoted to 1LT on 17 June 1991.  

7.  On 27 June 1993, the applicant received a relief-for-cause OER for the period 1 March 1993 through 27 June 1993 while performing duties as company executive officer.  This OER showed the following:

	a.  in Part IV (Performance Evaluation-Professionalism), his rater, a CPT, the company commander, rated his professional competence and assigned a “3” rating under “possesses capacity to acquire knowledge/grasp concepts”; a “2" under “motivates, challenges, and develops subordinates”; a “3” under “performs under physical and mental stress”; a “4” under “displays sound judgment”; a “2” under “seeks self-improvement”; a “3” under “is adaptable to changing situations”; and a “1” rating in the remaining eight areas;

	b.  in Part IVb (Professional Ethics), the supporting comments indicate that the applicant failed to adhere to the battalion commander’s guidance for Annual Training 1993; that after being relieved he continued to display unsound behavior; and that he failed to accept responsibility for personal decisions and actions; 

	c.  In Part V (Performance and Potential Evaluation), the rater rated his performance rating of “usually exceeds requirements” and a “do not promote” rating under potential.  The supporting comments indicate that the applicant began to have difficulties with the chain of command on 16 June 1993 when he started yelling at the 1st Platoon Leader about a Soldier who had a lot of chigger bites.  He failed to adequately assess the situation before making accusations that upset members of the platoon.  On 19 June 1993, he took a weapon from a sleeping Soldier, dragged it through the mud, and then stuck the barrel in the mud.  He again failed to utilize the chain of command in solving a perceived problem and he failed to properly assess the situation.  The Soldier was on a sleep plan that the platoon leader had instituted for the platoon.  Had the applicant met with the chain of command before taking matters in his own hand, he would have been told what was happening in the platoon.  His perception of his actions is that he felt he had done nothing wrong and on 20 June 1993, he was relieved of his duties by the battalion commander; 


	d.  in Part VI (Intermediate Rater Comments), his intermediate rater, a major (MAJ), the battalion executive officer, indicated that the applicant failed to grasp the significance of his actions.  He had not been able to acknowledge the gravity of his mistake, or to learn from it.  He recommended that the applicant be separated from the TXARNG; 

	e.  in Part VII (Senior Rater), the applicant’s Senior Rater (SR), a lieutenant colonel (LTC), his battalion commander, placed the applicant in the bottom block of his SR profile and commented that he was disappointed with the recent performance of the applicant.  In garrison, he exhibited good judgment; however, in a stressful, extended field environment, he exhibited significant judgment failures.  He tried to exhibit an inappropriate set of leadership values.  He violated written policies about command climate and leadership and he refused informal and formal counseling plans about leadership.  The SR went on to state that he lacked confidence in the applicant’s future potential and leadership style.  He did not recommend him for any tactical leadership position or further retention in the TXARNG whatsoever.  

8.  The OER was considered adverse and as such was referred to the applicant, who refused to sign the report.  There is no indication in the available records to show that the applicant responded to the issues in the referred report.  However, the OER indicates that there were four enclosures with the report, which may suggest he rebutted the report.  

9.  The facts and circumstances of the administrative separation are not available for review with this case and the applicant has not provided such facts and circumstances.  However, the applicant's records contain a DA Form 4187, dated 28 June 1993, addressed from the applicant's commander, through the Commanders, 36th Brigade and 49th Armored Division, to The Adjutant General, State of Texas.  This DA Form 4187 is marked as a request the applicant be separated from the TXARNG in accordance with paragraph 4, TXARNG Regulation 635-100 (Administrative Discharge of Officers and Warrant Officers), due to substandard performance of duty as reflected in his relief-for-cause OER. Additionally, the DA Form 4187 indicates the following:

	a.  the Commander, 36th Brigade, lined through his address and placed his initials on 1 July 1993, indicating his concurrence; 

	b.  the Commander, 49th Armored Division, also lined through his address and placed his initials on 9 July 1993, indicating his concurrence; and

	c.  the DA Form 4187 is stamped with The Adjutant General stamp, indicating receipt on 13 July 1993.  
10.  On 21 July 1993, the Adjutant General’s Department of the TXARNG published Orders 142-92 directing that the applicant be honorably discharged on 14 July 1993 and transferred to the USAR Control Group (Reinforcement).  The authority on that order indicated that it was a vocal order of The Adjutant General of Texas under the provisions of paragraph 5a(3), National Guard Regulation 635-100.  That order was subsequently amended on 5 April 1994, to reflect the authorization as paragraph 4 of TXARNG Regulation 635-100. 

11.  The applicant was issued a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) showing he completed 5 years and 27 days of service during this period.  This form further shows the authority for separation as "paragraph 5a(3) of National Guard Regulation 635-100 (Administrative Discharge)."  Additionally, on 14 April 1994, an NGB Form 22a (Correction to NGB Form 22) further amended the authority for the discharge to read “paragraph 4 of TXARNG 635-100 (Administrative Separations).”

12.  Following his transfer to the USAR Control Group, the U.S. Total Army Personnel Command, St. Louis, MO, notified the applicant by memorandum on 15 November 1994, that he was considered for promotion to CPT by the Reserve Components Selection Board (RCSB), but he was not selected.

13.  The applicant previously provided an unsigned letter, dated 6 July 1995, to The Adjutant General, TXARNG, in which he indicated that he appreciated the opportunity he was afforded at the close of his meeting on 30 June 1995 and further indicated that he had learned some valuable lessons from the incidents that occurred during Annual Training in 1993 and acknowledged that he may have erred in judgment.  He also indicated if The Adjutant General should deem it appropriate to reinstate him as a 1LT in the TXARNG, his leadership training and skills would be of greatest asset to one of two units he listed.

14.  On 31 August 1995, in response to a congressional inquiry on behalf of the applicant regarding his discharge from the TXARNG, the NGB responded to the Member of Congress to the effect that the applicant had been extended the opportunity to reenlist in the TXARNG and that he had made application to reenlist in the TXARNG.  At the time, there was no indication in the available records to show that the applicant ever completed that enlistment process. 

15.  The applicant also provides an unsigned, undated letter to The Adjutant General of Texas in which he states that he had been informed by the Inspector General's Office of the NGB that his request for reinstatement as a 1LT in the TXARNG had been approved and he desired to know the status of his reinstatement.
16.  On 1 March 1996, by memorandum, U.S. Army Human Resources Command (USAHRC), St. Louis, notified the applicant that he was considered a second time for promotion to CPT by the RCSB, but he was not selected.  The memorandum further advised him that as a result of this second non-selection, he must be separated from the USAR and that his commander would advise him of the separation procedures and any options available to him by separate correspondence.  Accordingly, orders were published on 13 May 1996, honorably discharging him from the USAR, effective 15 May 1996.

17.  On 16 August 1996, in connection with his original application to the Board, an advisory opinion was obtained from the Director of Personnel, Headquarters, Department of the Army and the Air Force National Guard Bureau, Personnel Services Division, Arlington, VA.  The Director stated that since the applicant’s Federal Recognition was properly withdrawn, the ARNG recommended his application not be favorably considered.  The Director further stated that:

	a.  according to the applicant's information in his file, he was properly discharged from State appointment in accordance with paragraph 4 of TXARNG Regulation 635-100 and because he was discharged from his State appointment, his Federal Recognition was withdrawn.  He did not provide sufficient evidence to justify that he be reinstated and/or compensated for lost allowances, promotions, and legal costs; 

	b.  there was no evidence that the applicant appealed his 1993 discharge to The Adjutant General, State of Texas.  He wrote a letter to The Adjutant General on 30 July 1993 listing a report of the incidents that led to his receiving a DA Form 4856 (General Counseling Statement); however, that letter did not constitute an appeal.  Additionally, his application to the ABCMR mentioned several unsubstantiated allegations and a reference to nonjudicial punishment on that application was unclear.

18.  On 15 October 1996, the ABCMR responded to the applicant’s 1 October 1994 application to the Board concerning his administrative discharge from the TXARNG and informed him that the Board did not have the authority to correct ARNG records when the ARNG member was under State control and not in a Federalized status.  The letter also informed the applicant that an advisory opinion had been obtained from the NGB and the opinion was provided to the applicant.  He was informed that his request was returned without prejudice and without action taken by this Board.



19.  The applicant applied to the ABCMR on 1 March 1997 requesting that he receive USAR promotion reconsideration for and be promoted to the rank of CPT.  He asserted that he had not been properly considered by the promotion selection board because he had been unlawfully discharged from the TXARNG and his case was under appeal at the time the board met.  The Board requested that officials at USAHRC place the applicant’s records before a Special Selection Board (SSB) for promotion consideration under the 1995 criteria.  On 4 February 1999, the Board reviewed the applicant’s request and determined that he had not been selected for promotion by the SSB and denied his request for promotion.

20.  There is evidence in the available records to suggest that the applicant may have appealed the adverse OER to the Officer Special Review Board (OSRB) in 2001.  In any event, the OER remains in the applicant's Official Military Personnel File.

21.  On 25 March 2005, the applicant enlisted in the TXARNG for a period of 6 years in the rank/grade of SSG/E-6.  He was assigned to Company B, 1st Battalion, 141st Infantry.  He subsequently served in Kosovo from 15 September 2006 to 5 December 2006 and in Iraq from 3 September 2007 to 27 January 2008.

22.  On 30 March 2005, the applicant submitted a request to the ABCMR requesting reinstatement as an officer in the TXARNG with a rank commensurate with his service and that he receive all retroactive benefits and service credit in the TXARNG since 14 July 1993.

23.  On 4 May 2006, the applicant was advised that the evidence presented did not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of his case were insufficient as a basis for correction of his records and denied his request.

24.  On 27 April 2007, the applicant requested, in effect, through counsel, reconsideration of his earlier request to be reinstated as a commissioned officer in the TXARNG with promotion to the appropriate rank and restoration of all pay and benefits as a result of this correction. 

25.  On 7 August 2007, the applicant was advised that the Board thoroughly reconsidered his request as well as the argument and/or new evidence submitted by him and his counsel.  However, the Board again denied him the requested relief.

26.  TXARNG Regulation 635-100 provides National Guard officers policies focused on attaining and maintaining military leadership which directly correlates with achieving a combat ready and professional dynamic force.  It establishes the necessary policy and procedures to ensure this goal by providing authority for administrative discharge of officers when and where necessary.  Paragraph 4 of the regulation in effect at the time provides 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 individual 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.

27.  National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition) provides, in pertinent part, that Federal Recognition will be withdrawn when orders are published by the State Adjutant General that separate an officer from his or her ARNG appointment.

28.  Army Regulation 135-175 provides, in pertinent part, that an officer will be involuntarily separated without board action when the member submits a resignation in lieu of involuntary separation proceedings and the resignation is accepted by the Department.

29.  In support of his application, the applicant provided a copy of a Texas Court of Appeals decision, Cole v. TXARNG, 909 S.W.2d 535 (Tex. App. 1995).  In Cole, the appellant, a TXARNG lieutenant colonel, was discharged for cause by the TAG without benefit of a hearing.  Instead, he was discharged per “administrative regulation” with that administrative regulation being, as in the applicant’s case, paragraph 4 of TXARNG Regulation 635-100.  

30.  In Cole, the court noted that Texas Government Code, section 431.042(b)(5) stated, in pertinent part, that an officer could hold his position until age sixty-four, unless earlier discharged or retired for …cause determined by a court-martial or efficiency board legally convened for that purpose.”  Noting that the TAG was not free to “create a particular power in himself …when that power has not been first delegated to him by statute”, the court held that TXARNG 635-100 “must be construed and must operate consistently with the statute.”  Thus, the failure to have Cole’s case considered by a board rendered his discharge improper. Similarly, applicant’s discharge was improper.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant received an adverse OER that clearly identified substandard performance or conduct (failure to adhere to the battalion commander's guidance, continuing displays of unsound behavior, and failure to accept responsibility for personal decisions and actions).  By TXARNG regulation, an officer who was substandard in the performance of his/her duties (and continued to be) was subject to discharge from the TXARNG. Accordingly, the applicant was discharged from the TXARNG and subsequently transferred to the USAR Control Group (Reinforcement).

2.  The Adjutant General of Texas had the option to appoint a board of officers to investigate the applicant’s appeal of the commander's recommendation to discharge him.  There is no record or evidence that the applicant ever submitted an appeal.  Therefore, there was no regulatory requirement to offer the applicant a board of officers review prior to his discharge.

3.  The evidence of record further shows that the applicant met with The Adjutant General to discuss his discharge and that The Adjutant General allowed him to later enlist as an enlisted Soldier.  However, there is no evidence that The Adjutant General or any other official in the ARNG authorized the applicant’s reinstatement in the TXARNG as a commissioned officer.  Various documents, some of which were submitted by the applicant, clearly show he may have been allowed to enlist; but, there is no evidence to show that he was considered for reinstatement as a commissioned officer.

4.  The evidence of records further shows that, while in the USAR Control Group (Reinforcement), the applicant was twice considered for promotion to CPT based on his overall record, but he was not selected.  His record was even considered by an SSB; yet, he was still not selected for promotion to CPT.  Accordingly, he was discharged from the USAR.  There is neither an error nor an injustice with regard to his non-selection to CPT.  As such, no correction of rank is considered appropriate in this case.  

5.  However, the thrust of the applicant’s latest argument is that his due process rights were violated when he was summarily separated, because he was entitled to have his case considered by a board prior to the TAG taking action.  In support of his argument the applicant relies on the case of Cole v. Texas Army National Guard, 909 S.W.2d 535 (Tex. App. 1995).  The applicant’s reliance on Cole is not misplaced.  Cole does in fact support the proposition that the applicant was entitled to a board. 

6.  In Cole, the appellant, a TXARNG lieutenant colonel was discharged for cause by the TAG without benefit of a hearing.  Instead he was discharged per “administrative regulation” with that administrative regulation being, as in the applicant’s case, paragraph 4 of TXARNG Regulation 635-100.  The framework of TXARNG Regulation 635-100 as it related to officer separations essentially involved paragraph 4, which referred to three grounds for separating an officer before he reaches age sixty-four: (1) at the officer’s request; (2) for reasons related to force management issues; and (3) for cause, which was described as follows: Officers who are substandard in performance of duty or conduct, deficient in character, lacking in 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 these conditions will be sufficient basis for the administrative discharge of an officer from the TXARNG. 

7.  Paragraph 5 then laid out the procedures to be followed in order to separate the officer for cause.  Commanders were authorized to request the voluntary resignation of officers.  If the officer refused to resign, the commander was then free to request that the TAG separate the officer.  The TAG then had it within his discretion to appoint a board of officers to investigate and provide recommendations.

8.  Paragraph 5b stated “The Adjutant General may cause the administrative discharge of an officer for reasons indicated in paragraph 4 without the request or recommendation of an intermediate commander.”  According to the Cole court, though not expressly empowered to do so, the TAG interpreted paragraph 5 to mean that the TAG could not only initiate separation on his own, but that he could also make, essentially in any case, his own determination of cause without recourse to a board.  While the TAG’s interpretation of the regulation may not have been facially unreasonable, the problem in Cole was that the regulation as interpreted and applied by The TAG ran afoul of the provisions of the Texas statutes governing the TXARNG.  Specifically, Texas Government Code, section 431.042(b)(5) stated, in pertinent part, that an officer could hold his position until age sixty-four, unless earlier discharged or retired for …cause determined by a court-martial or efficiency board legally convened for that purpose.”  Noting that the TAG was not free to “create a particular power in himself …when that power has not been first delegated to him by statute,” the court held that TXARNG    635-100 “must be construed and must operate consistently with the statute.” Thus, the failure to have Cole’s case considered by a board rendered his discharge improper.  Similarly, applicant’s discharge was improper.  Based on the discussion above, the applicant is entitled to relief as to his discharge from the TXARNG. 

9.  The applicant’s records should therefore be corrected to show that he was extended Federal Recognition as a 1LT in the TXARNG until the date of his release from the USAR as a two-time non-select for promotion to captain.  He should also be awarded retirement points for that time period and be paid as a 1LT as well.  Applicant is entitled to no additional relief either in law or in equity. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a. amending Orders 142-92, issued by The Adjutant General's Department, TXARNG, dated 21 July 1993, to show the date of discharge as 15 May 1996 (the date he was discharged from the USAR) instead of 14 July 1993 and extending him Federal Recognition as a 1LT during this period;

	b.  awarding the applicant retirement points credit for the period from 14 July 1993 to 15 May 1996 based on the average of retirement points he earned in the 3 years prior to his discharge from the ARNG on 14 July 1993; and

	c.  having the Defense Finance and Accounting Service audit the applicant's pay account to determine if he is entitled to any pay and allowances as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the applicant's reinstatement as a CPT in the ARNG; awarding him the differential between his current pay as 
an SSG/E-6 and the pay of a CPT retroactive to 14 July 1993; awarding him all 
benefits, allowances, and entitlements he would have received at the rank of CPT from 14 July 1993 to the present; and awarding him credit for time served in the rank of CPT from 14 July 1993 to the present.



      ________XXX_______________
               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)                                         AR20090004612



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004612



14


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1