IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090004959 


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, correction of his records by removing the involuntary separation action from his records.  He also requests that his record be corrected to show that he was honorably separated from the U.S. Army Reserve (USAR) and transferred to the Retired Reserve effective 22 June 2008.
Alternatively, he requests that this Board order a new separation board to correct the deficiencies of the original separation board.

2.  The applicant states, in effect, that he believes the separation board should be determined invalid due to a lack of fundamental fairness and due process.  He states that he was provided incorrect information by Army officials.  He was advised that he could retire after the separation board met, and he relied on this misinformation.  He was not present at the separation board, and he believes the government's misrepresentation of information violated his rights.  The applicant also states:

   a.  the president of the board committed a substantive error when he failed to contact him and advise him of his responsibilities, rights, and privileges in accordance with the governing Army regulations.  He adds the president of the board should have required him to waive his presence at the hearing either telephonically or in writing.

   b.  he was provided incorrect information by Army human resource officials when he was advised that he could request voluntary retirement at any time before he was separated.  Had the president of the board properly advised him that he could have requested voluntary retirement any time before Headquarters, Department of the Army (HQDA), took final action there would have been no error in his case.  He adds, notwithstanding HQDA's final action, he believes he should have been allowed to voluntarily retire before his separation date.  The applicant also states:

        (1)  he was notified on 28 October 2007 that a separation board was being convened to determine whether he should separated from the Army based on failure to pass two consecutive Army Physical Fitness Tests (APFT’s).  At the time he had 29 years of service and 17 years of active service.  The board convened on 18 November 2007; however, the applicant was not present and he was not represented by counsel.

        (2)  he spoke with two senior Army human resource officers who incorrectly informed him that, regardless of the outcome of the separation board, he could retire anytime before he was separated.  On the basis of this incorrect information, he was not present at the hearing.  He adds that because of this erroneous advice, he believed the outcome of the separation board would be irrelevant since he could still retire, as planned.  However, the correct advice would have been that the applicant could request voluntary retirement any time before HQDA took final action on his case.

        (3)  that according to the summarized proceedings, the recorder stated he had contacted him and that it was not his intention to be present at the separation board.  The applicant adds, "Applicant had sat on boards before and was not inclined to be subjected to cross-examination with respect to APFT failures."

        (4)  had he been present at the hearing, the president of the board would have properly advised him that he could apply for voluntary retirement, if eligible, any time before HQDA took final action on the case.  He adds the appropriate course of action was for the president of the board to advise him of his rights either telephonically or in writing.

        (5)  after the Board recommended separation with an honorable discharge, he subsequently attempted to retire and was informed that he could not because HQDA had taken final action on his case.  On 22 May 2008, he received orders separating him from the USAR with an effective date of 22 June 2008.  As a result, he is not entitled to the so-called "gray area" benefits, although he is entitled to retirement benefits at age 60.

        (6)  the essence of the issue is whether he "voluntarily" made the decision not to contest the separation board or not to request retirement before HQDA took final action on his case.  He refers to litigation in the federal courts that is related to "voluntariness" and circumstances that could serve to rebut the presumption of "voluntariness" and specifically, "government misrepresentation of information upon which he relied on to his detriment."  He adds that he attempted to retire before the effective date of separation, which also suggests that his decision was not made voluntarily.
   
        (7)  the test for whether a decision is made voluntarily is an objective reasonable person standard.  He also states that Federal case law "requires that the agency misrepresent information and the individual detrimentally relied upon it."  He adds he was negligently provided incorrect information.  In addition, his decision not to be at the board cannot be presumed to have been voluntary as the decision was made with "blinders on" resulting from incorrect information that he was provided.

        (8)  that the president of the board committed substantive and procedural error when he failed to contact him concerning his responsibilities, rights, and privileges, and to obtain a written or telephonic waiver of those rights.

        (9)  that given the substantive defect in the separation board, the appropriate remedy is for the Army Board for Correction of Military Records (ABCMR) to allow him to retire and receive "gray area" benefits.  Alternatively, the ABCMR could order a new separation board to correct the deficiencies in the original board.

3.  The applicant provides, in support of his application, 10 enclosures (Tabs
A - J) identified on page 9 of his supplemental statement and he references a previously submitted DD Form 149, dated 5 January 2009, that is not attached to the application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's records by removing the current separation action, showing the applicant voluntarily requested retirement, and approving his request for retirement effective 22 June 2008.

2.  Counsel, in effect, defers to the applicant. 

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted appointment as a Reserve commissioned officer of the U.S. Army on 25 May 1979 and he entered active duty in the Regular Army on 21 May 1980.  He continued to serve in an active duty status until he was honorably discharged on 1 July 1990.  He accepted appointment in the USAR where he continued to serve in an active status.

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty in support of Operation Noble Eagle on 21 April 2003 and that he was promoted to the rank of colonel (COL)/pay grade O-6 on 3 June 2004.  He was honorably released from active duty on 2 February 2007 and transferred to the 63rd USAR Regional Support Command (RSC), Los Alamitos, California.

3.  On 28 October 2007, the applicant was advised that he would be considered by a separation board for involuntary separation action due to substandard performance of duty pursuant to Army Regulation 135-175 (Army National Guard and Army Reserve - Separation of Officers).

4.  At 1118 hours, on 18 November 2007, a separation board convened to consider the applicant for involuntary separation action.  The applicant was not present at the board and he was not represented by military or civilian counsel.  The Board finished gathering/hearing evidence at 1248 hours, on 18 November 2007, and completed its findings and recommendations at 1327 hours, on 
18 November 2007.  The board found the applicant did not adhere to regulations, in that he failed to exercise necessary leadership or command required of an officer of his grade and that he also failed to properly discharge assignments commensurate with his grade and experience.  Specifically, he failed to pass two consecutive APFT’s.  The board recommended the applicant be separated from the USAR with an honorable discharge.

5.  On 8 December 2007, a Judge Advocate (JA) assigned to the 63rd RSC,
Los Alamitos, conducted a legal review of the Record of Separation Proceedings pertaining to the applicant and determined the findings, recommendations, and proceedings documented in the Record were legally sufficient in accordance with Army Regulation 135-175 and Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  The reviewing officer concluded that the board's findings were supported by the evidence, the recommendations were consistent with the findings, and therefore, legally sufficient.

6.  On 24 January 2008, the Commanding General, 63rd Regional Readiness Command (RRC), Los Alamitos, notified the Commander, U.S. Army Reserve Command (USARC), Fort McPherson, Georgia, that a board of officers convened on 18 November 2007 to consider whether the applicant failed to exercise necessary leadership or command required of an officer of his grade and for failure to properly discharge assignments commensurate with his grade and experience, and whether he should be involuntarily separated from the military.  It was confirmed the separation board substantiated the applicant failed to pass two consecutive APFT’s and recommended that the applicant be separated with an honorable discharge.  The Commander, 63rd RRC, approved the board's findings and recommended approval with an honorable discharge.

7.  On 6 February 2008, a JA assigned to USARC, Fort McPherson, Georgia, conducted a legal review of the involuntary separation board results pertaining to the applicant.  The JA affirmed that the applicant was properly notified of his separation action and subsequent administrative board, the notifications were properly served, and the separation board was properly conducted.  The JA confirmed the findings and recommendations of the board and concurrence of the Commander, 63rd RRC, with the board's findings and recommendations.  The separation packet was also determined to be legally sufficient.

8.  On 28 February 2008, the Commanding General, USARC, Fort McPherson forwarded the involuntary separation board results pertaining to the applicant to the Commander, U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri and recommended that the applicant be separated with an honorable discharge.

9.  On 22 May 2008, the Commander, USA HRC, St. Louis, Missouri, reviewed the applicant's case, approved the findings and recommendations, and directed that the applicant be issued an honorable discharge from the USAR.  Accordingly, the applicant was issued orders and honorably discharged from the USAR effective 22 June 2008.

10.  In support of his application, the applicant provides the following documents:

    a.  Headquarters, 78th Legal Support Organization, Los Alamitos, California, memorandum, dated 28 October 2007, subject:  Notification of Board Hearing and Related Matters Re Involuntary Separation Action Re COL [Applicant's Name and Social Security Number (SSN)].  This document shows the applicant was notified that he would be considered by a separation board for involuntary separation action due to substandard performance of duty pursuant to Army Regulation 135-175, commencing 0900 hours, 18 November 2007.  This document also shows this notification and the separation board action was taken based on the applicant's refusal to accept or respond to the Notification of Involuntary Separation Action, dated 26 January 2007.  This document further shows the applicant was notified of the basis of the action and advised of his rights.
   
   
   b.  Headquarters, USAR Personnel Command, St. Louis, Missouri, memorandum, dated 29 June 2000, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), that shows the applicant was notified he had completed the required years of service and was eligible for retired pay upon application at age 60 in accordance with provisions of Title 10, U.S. Code, chapter 1223.  The applicant was born on 26 July 1956 and he will reach age 60 in July 2016.

	c.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows a formal board was appointed by the Commander,
63rd RSC, Los Alamitos, on 13 October 2007, and the board commenced at 1118 hours, 18 November 2007.

       (1)  This document shows that notice was given to the applicant as a respondent to the board that included his rights with regard to counsel and his rights to be present to present evidence, and call witnesses.  The applicant elected not to be present during the board hearing and he elected not to be represented by counsel.  This document also shows that a legal advisor was present via telephone.  

       (2)  The board found that the applicant did not adhere to regulations stated in Army Regulation 135-175, paragraph 2-11(c) and 2-11(f), in that he failed to exercise necessary leadership or command required of an officer of his grade and for failure to properly discharge assignments commensurate with his grade and experience; specifically, his failure to pass two consecutive APFT’s.

       (3)  The board recommended the applicant be separated from the USAR with an honorable discharge.  The appointing authority approved the findings and recommendations of the board on 7 January 2008.

   d.  Headquarters, 63rd RSC, Los Alamitos, California, memorandum, dated
8 December 2007, subject:  Legal Review of Record of Separation Proceedings for COL [Applicant's Name and SSN] with Summarized Proceedings of a Separation Board Hearing, including government exhibits, respondent exhibits [none], and enclosures.  The memorandum shows, in pertinent part, a JA conducted a legal review and noted the separation board convened, on
18 November 2007, and the applicant was not present at the hearing and he was not represented by counsel.  The JA added that the evidence reflects the applicant was sufficiently notified of the separation proceedings, the recorder contacted the applicant and the applicant stated he did not intend to be present at the hearings.  He also elected not be represented by either military or civilian counsel.  The JA stated the board's findings were supported by the evidence, and the recommendations are consistent with the findings.  Therefore, the findings are legally sufficient.  The JA noted that the board president did not have a date of rank seniority among the other board members; however, this procedural error is harmless in that the findings and recommendations of the board were unanimous and there was nothing in the record that reflects the error affected the applicant's substantial rights.  Of particular note are the following enclosures.

        (1)  Summarized Proceedings of a Separation Board Hearing that show a Legal Advisor was telephonically present.  The proceedings do not show that the Legal Advisor advised the board on any legal or procedural matters.

        (2)  Headquarters, 63rd RRC, Los Alamitos, California, memorandum, dated 14 April 2007, subject:  Notification of Involuntary Separation Action, that provided initial notice to the applicant of the involuntary separation action.  This document, in pertinent part, advised the applicant to acknowledge receipt of the document within 15 days of receipt and that he may elect one of three options:  (1) resign in lieu of involuntary separation, (2) request transfer to the Retired Reserve, if eligible, or (3) request that his case be acted upon by a board of officers.  There is no indication the applicant acknowledged receipt of the document or that he elected an option.

        (3)  Certificate of Service, dated 29 October 2007, that shows a USAR JA assigned to the 78th Legal Support Organization declared that on 29 October 2007, he caused to be served on the applicant the Notification of Board Hearing and related matters pertaining to his involuntary separation action, along with enclosures that include:
   
            (a)  email messages, dated 29 October and 9 November 2007, that document delivery of the Notification of Board Hearing and Related Matters to the applicant's email address via the U.S. Army email system.

            (b)  DA Form 200 (Transmittal Record), dated 9 November 2007, that shows delivery of the Notification of Board Hearing and Related Matters to a U.S. Army commissioned officer in the S-3 office (i.e., the applicant's office).

            (c)  PS Form 3811 (Domestic Return Receipt) that shows the 78th Legal Support Organization, Los Alamitos, California, mailed documents to the applicant via certified mail with return receipt and that Helen B. W_____ received the package, on 10 November 2007, on behalf of the applicant.




	e.  A statement by Mr. Vernon L_____, Human Resources (HR) Officer,
63rd RRC, dated 29 January 2009, that shows the applicant was notified on 
28 October 2007 that a separation board was being convened to determine if he should be separated; sometime between 28 October and 18 November 2007 the applicant spoke with him; and "[he] informed [the applicant] that regardless of the outcome of the separation board, he could retire anytime before he was separated."  He adds the applicant received separation orders in May 2008 and he tried to have the applicant's orders amended, but he was unsuccessful.

	f.  A statement by Mr. Harry P____, Deputy for Management and Support,
63rd RRC, dated 30 January 2009, that shows the applicant was notified in late October 2007 that a separation board was being convened to determine if he should be separated; sometime in late October or early November 2007 the applicant spoke with Mr. Harry P____; and "[he] informed [the applicant] that he would be able to submit a request for retirement anytime before he was separated."  He adds the applicant received separation orders in May 2008 and [they] attempted to have the applicant's orders amended, but were unsuccessful.

   g.  Headquarters, U.S. Army, 63rd RRC, Los Alamitos, California, memorandum, dated 24 January 2008, subject:  Recommendation for Separation, COL [Applicant's Name, SSN], addressed to the Commander, USARC, Fort McPherson that shows the Commanding General, 63rd RRC, recommended approval of the board's recommendation that the applicant be honorably separated. 

   h.  Headquarters, USA HRC, St. Louis, Missouri, Orders D-05-814066, dated
22 May 2008, show the applicant was discharged from the USAR effective 
22 June 2008.
   
   i.  A DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 22 June 2008, shows the applicant submitted a request for release from his assignment at Headquarters and Headquarters Company, 63rd RRC, Lost Alamitos, California, for the purpose of transfer to the USAR Retired Reserve, St. Louis, Missouri, effective 22 June 2008, under the provisions of Army Regulation 140-10, paragraph 6, section I.  This document was signed and dated by the applicant on 15 February 2009 and signed and dated by the losing unit commander on 23 February 2009.

11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It defines Ready Reserve Control Groups and the Selected Reserve, and detailed procedures are given for removing Soldiers from an active status.  It also gives procedures for interservice transfer and selective retention of unit Soldiers.  Paragraph 6 (Transfer to and from the Retired Reserve), paragraph 6-1 (Eligibility), lists the conditions for Soldiers authorized assignment to the Retired Reserve and, in pertinent part, identifies Soldiers entitled to receive retired pay from the U.S. Armed Forces because of prior military service and Soldiers who have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  This paragraph also states that eligible Soldiers must request transfer to the Retired Reserve.

12.  The USA HRC, Army Reserve, website at:  www.hrc.army.mil/site/Reserve  describes Soldier services and information on benefits for "gray area" and recipients of retired pay.  This website shows that an active Reserve Component, Individual Ready Reserve, or Retired Reserve service member, who has received a 20-year letter but has not received any retired pay, may be eligible to receive "gray area" benefits and identifies the specific "gray area" benefits.

13.  Army Regulation 135-175 provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States (ARNGUS) and USAR, except for officers serving on active duty or active duty for training exceeding 90 days.

   a.  Paragraph 2 (Involuntary Separation - ARNGUS and USAR Officers) prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when retention is not in the best interest of the service.

   b.  Paragraph 2-3 (Limitation on Separation), subparagraph d, provides that an officer with 20 or more years of qualifying Federal service for retired pay who is considered for involuntary separation will be given an opportunity to elect transfer to the Retired Reserve in lieu of involuntary separation.

   c.  Paragraph 2-17 (Initial actions by area commander) provides, in pertinent part, the following actions may be taken by the area commander on recommendation for involuntary separation received from commanders or appropriate agencies at HQDA:

        (1)  if it is determined that a sufficient basis exists to initiate involuntary separation action, the area commander will (if the whereabouts of the officer concerned is known or may be ascertained by Army Regulation 135-133 (Ready Reserve Screening, Qualification Records System, and Change of Address Reports):  notify the officer concerned of the requirement to show cause for retention and will give the individual the reason for this requirement; advise the officer in the above notification, if appropriate, that he may elect to submit a resignation in lieu of involuntary separation or, if eligible, elect to transfer to the Retired Reserve, or to have the case acted on by a board of officers; advise the officer of the requirement to acknowledge receipt of the above notification within 
15 days of receipt, indicating his election on one of the above options; when determined necessary by notifying command, notification will be sent to member by certified mail, return receipt requested;

        (2)  on securing the acknowledgement or receipt from the officer, notified in accordance with the above, the area commander will, if the officer elects transfer to the Retired Reserve and is otherwise eligible - process the officer's request; submits a resignation in lieu of involuntary separation - forward the resignation and related correspondence to HQDA; or elects appearance before a board or elects board proceedings but waives appearance - take necessary steps to appoint the board as prescribed in this regulation and Army Regulation 15-6.

        (3)  if the whereabouts of the officer are unknown and unascertained after complying with the procedures prescribed in Army Regulation 135-133, or if the officer refuses to accept or respond to the notification required (above), the area commander will take necessary steps to appoint a board of officers, as prescribed in this regulation and in Army Regulation 15-6.  A copy of the notification and either a post office receipt confirming delivery or the returned unopened envelope showing mail was refused, unclaimed, or not delivered will become part of the board exhibits.  This board may proceed in the officer's absence without according the privileges listed in paragraph 2-19 (Rights of the officer), except that counsel will be appointed to represent him in his absence.

14.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Paragraph 5 (Formal Boards of Officers), in pertinent part, provides the following:

   a.  Section I (General), paragraph 5-1 (Members), provides that all members of a formal board of officers are voting members, except as provided elsewhere in this paragraph, in other applicable directives, or in the memorandum of appointment.

        (1)  Subparagraph b (President) states that the senior voting member present acts as president.  The president will preserve order; determine time and uniform for sessions of the board; recess or adjourn the board, as necessary; decide routine administrative matters necessary for efficient conduct of the business of the board; and supervise the recorder to ensure that all business of the board is properly conducted and that the report of proceedings is submitted promptly.

        (2)  Subparagraph d (Legal advisor) provides that a legal advisor is a nonvoting member.  He or she rules finally on challenges for cause made during the proceedings and on all evidentiary and procedural matters, but may not dismiss any question or issue before the board.  In appropriate cases, the legal advisor may advise the board on legal and procedural matters.  If a respondent has been designated, the respondent and counsel will be afforded the opportunity to be present when legal advice is provided to the board.  If legal advice is not provided in person (for example, by telephone or in writing), the right to be "present" is satisfied by providing the opportunity to listen to or read the advice.
   
   b.  Paragraph 5-3 (Duties of recorder) provides that before a session the recorder is responsible for administrative preparation and support for the board and will perform the following duties before a session:  give timely notice of the time, place, and prescribed uniform for the session to all members, witnesses, and if any, legal advisor, respondent, counsel, reporter, and interpreter.  Only the notice to a respondent required by paragraph 5-5 need be in writing.  

   c.  Section II (Respondents), paragraph 5-5 (Notice), provides that the recorder will, at a reasonable time in advance of the first session of the board concerning a respondent, provide that respondent a copy of all unclassified documents in the case file and a letter of notification.  In the absence of special circumstances or a different period established by the directive authorizing the board, a "reasonable time" is 5 working days.  The letter of notification will include the following information:  the date, hour, and place of the session and the appropriate military uniform, if applicable; the matter to be investigated, including specific allegation, in sufficient detail to enable the respondent to prepare; the respondent's rights with regard to counsel; the name and address of each witness expected to be called; and the respondent's right to be present, present evidence, and call witnesses.

	d.  Paragraph 5-6 (Counsel) provides that a military respondent who does not retain a civilian counsel is entitled to be represented by a military counsel designated by the appointing authority.  A respondent who declines the services of a qualified designated counsel is not entitled to have a different counsel designated.

15.  Title 10, United States Code, section 14905 (Officer considered for removal; retirement or discharge), subsection b (Required retirement or discharge), provides that an officer removed from an active status under section 14903 [Boards of inquiry] of this title shall: (1) if eligible for voluntary retirement under any provision of law on the date of such removal, be retired in the grade and with the retired pay for which he would be eligible if retired under that provision; or (2) if eligible for transfer to the Retired Reserve and has completed the years of service required for retired pay under chapter 1223 of this title, be transferred to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected by removing the involuntary separation action.  He also contends that his record should be corrected by showing his request for retirement effective 22 June 2008 was approved and that he should be voluntarily separated for retirement effective 22 June 2008.  Alternatively, he contends the ABCMR could order a new separation board to correct the deficiencies of the original separation board.

2.  On 28 October 2007, the appropriate notice was issued to the applicant advising him that he would be considered by a separation board for involuntary separation action due to substandard performance of duty pursuant to Army Regulation 135-175.  The board recorder sent the notification and documents in the case file to the applicant electronically to his U.S. Army email address, in hard copy to an Army officer in the applicant's office, and via return receipt certified mail via the U.S. Postal Service.  The evidence of record shows the applicant acknowledged he was aware of the commander's intent to initiate involuntary separation action against him when he stated it was not his intention to be present at the separation board or to be represented by civilian or military counsel.
 
3.  The applicant was advised to acknowledge receipt of the notification of involuntary separation action within 15 days and that he may elect to resign in lieu of involuntary separation, request transfer to the Retired Reserve, or request that his case be acted upon by a board of officers.  The applicant discussed the intended involuntary separation action with two senior Army HR officials at the 63rd RRC sometime in late October or early November 2007 who incorrectly informed him he would be able to submit a request for retirement anytime before he was separated.  However, the applicant failed to acknowledge receipt of the notification of separation action or elect one of the three options available to him within 15 days.

4.  A separation board convened to consider the applicant for involuntary separation action, the applicant was not present at the board, and there is no evidence that counsel was appointed to represent the applicant in his absence.

   a.  The board recommended that the applicant be separated from the USAR with an honorable discharge.  The Commanding General, USARC, Fort McPherson approved the board's findings and recommended approval with an honorable discharge.
   
	b.  The Commander, USA HRC, St. Louis, Missouri, reviewed the applicant's case, approved the findings and recommendations, and directed the applicant be issued an honorable discharge from the USAR.  Orders were issued discharging the applicant from the USAR effective 22 June 2008.

5.  It is noted that the applicant's request for transfer to the Retired Reserve is dated 22 June 2008 (i.e., the date of his discharge).  It is also noted that the request was signed and dated by the applicant on 15 February 2009, and signed and dated by the losing unit commander on 23 February 2009, which was well after the date of the applicant's discharge from the USAR.

6.  The separation board was authorized to proceed in the applicant's absence. 
However, based on the applicant's eligibility for transfer to the Retired Reserve and in accordance with Title 10, United States Code, section 14905(b)(2), the correct action for the separation board was to also recommend approval of the applicant's transfer to the Retired Reserve.  Therefore, as a matter of law, it would be appropriate to correct the applicant's records to show the separation board recommended that the applicant be transferred to the Retired Reserve.  In addition, it would be appropriate to correct the applicant’s records to show his request for transfer to the Retired Reserve was approved by the Commander, USA HRC effective 22 June 2008.

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 all Department of the Army records of the individual concerned be corrected by:

   a.  showing the Separation Board recommended that the applicant be separated from the USAR and, based on the applicant's eligibility for transfer to the Retired Reserve and subject to the approval of the Commander, USA HRC, the separation board also recommended the applicant’s  transfer to the Retired Reserve;

   b.  showing the separation board’s (corrected) recommendations were approved by the Commander, USA HRC;

   c.  voiding the orders that honorably discharged the applicant effective
22 June 2008; and

	d.  issuing orders showing the applicant was transferred to the Retired Reserve effective 22 June 2008.

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 removing the involuntary separation action from his military personnel records and ordering a new separation board to correct the deficiencies in the original board.



      _______ _   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)                                         AR20090004959



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ABCMR Record of Proceedings (cont)                                         AR20090004959



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