IN THE CASE OF:	  

	BOARD DATE:	30 March 2010 


	DOCKET NUMBER:  AR20090010715 


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 restoration of his rank to sergeant (SGT)/E-5 and termination of the recoupment and payment of his Prior Service Enlistment Bonus (PSEB). 

2.  The applicant states he was wrongfully reduced in rank and discharged from service due to the negligence of two unit administrators. 

3.  To support his request, the applicant provides a Congressional Inquiry Packet with the following documents:

* self-authored statement
* privacy act statement
* electronic mail (e-mail)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* reduction orders
* military occupational specialty (MOS) orders
* assignment orders
* 1st worksheet
* unit memorandum (unauthorized absence from training), dated 
16 January 2006.


CONSIDERATION OF EVIDENCE:

1.  The applicant's Official Military Personnel File (OMPF) contains a DD Form 4 (Enlistment/Reenlistment Document), dated 16 December 2005, that shows the applicant enlisted in the Tennessee Army National Guard (TNARNG), in the rank of SGT/E-5, for a period of 6 years.  It further shows he had 8 years of prior service at that time. 
 
2.  The OMPF contains an NGB Form 600-7-6-R-E (Annex X to DD Form 4 or 
DA Form 4836 PSEB Addendum-Army National Guard of the United States) that was completed during the enlistment process.  This document shows, in Section III (Bonus Amount and Payments), the applicant enlisted for a PSEB of $15,000.00, of which $7,500.00 was to be paid on the date of enlistment and the remaining $7,500.00 was paid on the 4th anniversary.   Section V (Termination) contains a signed statement from the applicant acknowledging he understood that his bonus eligibility would be terminated and recouped if he became an unsatisfactory participant.  

3.  On 16 December 2005, the applicant entered the TNARNG in the rank of SGT.  Joint Force Headquarters TNARNG, Orders Number 004-225, dated 4 January 2006, awarded the applicant MOS 63B (Light Vehicle Mechanic).

4.  An e-mail, dated 8 December 2006, from a TNARNG administrator to a Georgia (GA) ARNG administrator indicates shows the TNARNG administrator attempted to complete an interstate transfer on the applicant (transferring him from the TNARNG to the GAARNG).  A second e-mail from the TNARNG administrator to the applicant, dated 9 January 2007, requested that the applicant provide his current address and phone number.  The applicant was also advised that no one from the unit was able to reach him.  There is no e-mail response from the applicant in the available record and no documents indicating the applicant attempted to contact the unit administrators or his chain of command during this process. 

5.  On 16 January 2007, the TNARNG administrator notified the applicant it was critical for him to locate a unit to accept his interstate transfer via e-mail.  He also informed the applicant instructions were given to carry him absent without leave (AWOL) for the January drill and notification of that action was being sent to his last known address.  


6.  On 16 January 2006 [sic] (should be 2007), the TNARNG unit commander informed the applicant he was placed in an authorized absence status since
29 -30 July 2006 for the purpose of accomplishing an interstate transfer to Georgia and because he failed to complete the action, he was placed in an unauthorized absence status for the period 6-7 January 2007.  The applicant was also advised to contact the unit administrator TNARNG to complete the interstate transfer action and that his failure to do so would result in additional unsatisfactory performance of duty reports, termination, repayment of incentives, and possible arrest for being AWOL.  Finally, the applicant was informed to contact his TNARNG unit 2 weeks prior to the next drill (3-4 February 2007) if he desired to remain in that unit.

7.  On 7 March 2007, Headquarters, Regimental Fires Squadron, 278th Armored Cavalry Regiment, published Orders Number 0661.  These orders reduced the applicant from SGT/E-5 to specialist (SPC)/E-4 under the provisions of paragraph 7-49, Army Regulation 600-8-19, by reason of inefficiency and AWOL.

8.  On 7 March 2007, the applicant was discharged from the TNARNG and transferred to the U.S. Army Reserve (USAR) Control Group-Reinforcement.  The NGB Form 22 issued at that time shows he was discharged under honorable conditions, under the provisions of paragraph 8-35j, National Guard Regulation (NGR) 600-200, by reason of unsatisfactory participation.

9.  The available evidence does not show the applicant ever made contact with unit administrators or his chain of command at the TNARNG from the time he first entered an authorized absence status through the date of his discharge (July 2006 – March 2007) to complete the interstate transfer action. 

10.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  This official states the evidence in the application packet fails to show the applicant was wrongfully reduced in rank and discharged due to negligence of unit administrators.  The TNARNG granted the applicant an authorized absence to find a unit and relocate to the GAARNG.  The record is void of orders or other documents indicating this transfer was ever made.  The applicant's failure to complete the transfer action resulted in him being discharged for unsatisfactory participation on 7 March 2007.  This NGB official cites the regulatory guidance regarding the impact of unauthorized absence on bonuses and recommends that the applicant's request for termination of recoupment/payment of his bonus, along with his request for rank restoration be denied. 



11.  On 20 November 2009, the applicant was provided a copy of the advisory opinion for his rebuttal or comments.  To date, he has not responded.

12.  NGR 600-200 prescribes the policies for the personnel management of ARNG enlisted Soldiers.  Chapter 8, in effect at the time of the applicant's discharge, provided the policy for the discharge and separation of enlisted members of the ARNG.  Paragraph 8-35j provided the authority to discharge Soldiers from the ARNG for unsatisfactory participation.  It also states to refer to Army Regulation 135-178, chapter 13 for policy regarding unsatisfactory performance discharges.  

13.  Army Regulation 135-178 sets the policies, standards, and the orderly administrative separation of ARNG and USAR enlisted Soldiers.  Chapter 13 states a Soldier is subject to discharge for unsatisfactory participation when it is determined he is unqualified for further military service because attempts to have the Soldier respond or comply with orders or correspondence have resulted in one of the following:

* the Soldier's refusal to comply with orders or correspondence; or 
*  a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or 
*  verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.
14.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the ARNG and USAR incentive programs.  Paragraph 4-7 states reenlistment or extension bonus entitlement will stop if a Soldier becomes an unsatisfactory participant under Army Regulation 135-91.  Paragraph 4-9 provides the recoupment conditions for a reenlistment or extension bonus.  It states recoupment of immediate reenlistment or extension bonus payments will be started by the unit commander when entitlement to such incentive is terminated based on unsatisfactory participation.

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 10 provides guidance on reductions and paragraph 10-17 contains the authority for reduction for unsatisfactory participation.  It states a Solider may be reduced one grade for unsatisfactory participation.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wrongfully reduced and discharged and that he lost entitlement to his PSEB due to the negligence of unit administrators was carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The evidence shows the applicant's TNARNG unit allowed the applicant a sufficient period of authorized absence to complete an interstate transfer to the GAARNG and he failed to do so.  Unit administrators and the unit commander attempted to contact and advise the applicant of the consequences of not completing the transfer action.  

3.  The evidence further shows after a reasonable period, the unit commander placed the applicant in an unauthorized absence status and reduced the applicant due to unsatisfactory performance, he was discharged and recoupment actions were initiated in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout these processes.

4.  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.  The applicant has failed to submit evidence that would satisfy this 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)                                         AR20080005744



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ABCMR Record of Proceedings (cont)                                         AR20090010715



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