IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090009692 


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 that her involuntary separation of 1 October 2006 under other than honorable conditions be voided and she be reinstated in the U.S. Army Reserve (USAR) and transferred to the USAR Control Group (Reinforcement) effective 1 October 2006.

2.  The applicant states the discharge proceedings in her case were void because she was denied due process as set forth in Army Regulation 135-175 (Separation of Officers).  She states she was not notified of involuntary separation action and she did not execute any waiver of her rights to appear for a hearing before a board of officers.

3.  The applicant provides a written statement with 11 Exhibits in support of her application.  She also provides portions of Army regulations that she feels are applicable to her case.

CONSIDERATION OF EVIDENCE:

1.  On 1 April 1999, the applicant was honorably separated from the Texas Army National Guard (TXARNG) by reason of resignation under the provisions of National Guard Regulation 635-100, paragraph 5a(3).  She was subsequently transferred to the USAR Control Group (Reinforcement) in the rank of captain.  She had previously served 3 years, 9 months, and 17 days in a commissioned status in the TXARNG.  She also had previously served 5 years, 2 months, and
5 days in a commissioned status in the USAR.

2.  On 19 June 2002, the applicant was promoted to major in the USAR.

3.  On 17 January 2003, the applicant was mobilized as a member of her unit in support of Operation Enduring Freedom.

4.  On 30 May 2003, the applicant sought treatment for bilateral wrist pain and hand weakness for the last 2-3 months.  On 8 August 2003, her injury was determined to be in the line of duty.

5.  On 19 August 2003, the applicant was released from active duty and she returned to her unit at Fort Hood, TX.  She had completed 7 months and 3 days of active service that was characterized as honorable.

6.  Headquarters, 7th Army Reserve Command, Brigadier General Richard J. Dirgins U.S. Army Reserve Center in Germany Orders 06-283-0003, dated 
10 October 2006, discharged the applicant from the USAR effective 8 September 2006.  The type of discharge is shown as under other than honorable conditions.  Additional instructions in the orders make reference to a memorandum from Human Resources Command (HRC), dated 8 September 2006, signed by Major General Hernandez.

7.   Headquarters, 7th Army Reserve Command, Brigadier General Richard J. Dirgins U.S. Army Reserve Center in Germany Orders 06-289-00002, dated 
16 October 2006, revoked Headquarters, 7th Army Reserve Command, Brigadier General Richard J. Dirgins U.S. Army Reserve Center in Germany Orders
06-283-00003, dated 10 October 2006.

8.  Headquarters, 7th Army Reserve Command, Brigadier General Richard J. Dirgins U.S. Army Reserve Center in Germany Orders 06-290-00003, dated 
17 October 2006, discharged the applicant from the USAR effective 1 October 2006.  The type of discharge is shown as under other than honorable conditions.  Additional instructions in the orders make reference to a memorandum from HRC, dated 8 September 2006, signed by Major General Hernandez.

9.  The applicant's separation processing package was not available for the Board's review.  The memorandum from HRC, dated 8 September 2006, signed by Major General Hernandez referred to in the separation orders was not available for review.

10.  The applicant's military personnel records contained in iPERMS (interactive Personnel Electronic Records Management System) do not contain the facts or circumstances concerning the events that led to her discharge from the USAR.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge.  On 30 September 2008, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.  On 6 May 2009, after a personal appearance hearing, the ADRB again determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

13.  Army Regulation 135-175 sets forth the basic authority for the separation of officers from the USAR, except for officers serving on active duty or active duty training exceeding 90 days.  Chapter 2 of this regulation provides the basis for involuntary separations of USAR officers.  Specific categories include substandard performance of duty, moral or professional dereliction, in the interest of national security, as a result of trial by court martial, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, homosexual conduct, convictions by civil authorities and desertion or absence without proper authority from unit training.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate.  However, a general under honorable conditions or an honorable discharge may be granted.  The separation of an officer under the provision of this chapter will be accomplished only on the approved recommendations of a board of officers convened by competent authority.

14.  Army Regulation 135-175 provides that if it is determined that sufficient basis exists to initiate involuntary separation action of an officer, the area commander will notify the officer concerned of the requirement to show cause for retention and will give the officer the reason for this requirement, advise the officer in the notification that she may elect to submit a resignation in lieu of involuntary separation, if eligible, elect transfer to the Retired Reserve, or to have the case acted on by a board of officers.

15.  Army Regulation 135-175 provides that the area commander convening the board of officers will notify the officer of his/her right to be furnished copies of the records which will be submitted to the board and of other pertinent and 
releasable documents which may be requested; to consult with a consulting counsel; to present her case before a board of officers at personal expense; to be represented at any hearing by appointed counsel for representation military counsel of her own choice, provided such counsel is reasonable available, or civilian counsel at her own expense; to submit statements in her own behalf; to waive her rights in writing; and to withdraw her waiver of her rights any time prior to the date the convening authority directs that her case be presented before a board of officers.

16.  Army Regulation 135-175 provides that when a board of officers recommends the involuntary separation of an officer the Commander, Army Reserve Personnel Center (now known as Human Resources Command, St. Louis) will approve or disapprove the recommendations of the board of officers and advise the commander concerned to take necessary action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her involuntary separation under other than honorable conditions should be voided and that she should be reinstated in the USAR Control Group (Reinforcement).  She contends she was not notified of the involuntary separation action and that she was denied due process set forth in Army Regulation 135-175.

2.  The applicant's records do not contain the facts and circumstances concerning the events leading to her discharge from the USAR.  Her commander's notification of her separation action, her election of her rights, and the recommendations of a board of officers were not available for review.  However, her discharge orders contain a reference to a memorandum from HRC, dated 8 September 2006, and signed by a major general.  Therefore, it is reasonable to conclude that her separation package and recommendations by a board of officers were in fact submitted to HRC for final approval.

3.  Although the applicant's separation package was not available for review it is presumed that the Army's administrative processing of the applicant for discharge is correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence, which she has not achieved in her case.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.



5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  There is no evidence of record and the applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090009692



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ABCMR Record of Proceedings (cont)                                         AR20090009692



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