IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090015082 


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 his 1991 discharge under other than honorable conditions be upgraded to fully honorable.

2.  The applicant states he has lived with the knowledge he was wrongly separated from the AGR (Active Guard Reserve) program for 19 years.  He states 19 years is long enough.  He states he is not seeking any monetary gain, has no medical needs and because of his age, he cannot serve again.  He states he has nothing to gain from upgrading the character of his discharge except the personal satisfaction of clearing his name and his record.

3.  The applicant states the political climate of the Arkansas Army National Guard was “unreal” in 1990 and 1991.  He notes the governor (Bill Clinton) was running for president and every officer in the rank of lieutenant colonel and above was trying to improve his/her position.  He states through a serious of assignment manipulations his senior rater was replaced with another officer (Lieutenant Colonel F) who wanted “his man” in the applicant’s position.  He also notes his new rater (Major H) immediately went about attempting to discredit the applicant. 

4.  The applicant states he was accused of misuse of government equipment because he “had a camera on hand receipt from supply.”  He states he was required to keep the camera by his previous supervisor and following the shuffle in his chain of command this issue was raise solely in retaliation.  The applicant notes that even the Arkansas Army National Guard Judge Advocate General referred to the action as a “witch hunt” and states the legal advisor told him his appearance before the separation board would be useless since it was a “done deal” and the board members had been handpicked.  

5.  The applicant also questions whether the provisions of paragraph 6-44c of National Guard Regulation 600-200 were applicable in his case because he had over 21 years for pay purposes.  He notes that being reduced from the highest enlisted rank to the very lowest rank is unheard of.

6.  The applicant states he accepts the fact he made “puffed up” statements and told “war stories” about his service but maintains none of this was part of his official military record.  

7.  The applicant states he served his country for over 18 years without a blemish and because of Guard politics he was denied completion of service for retirement and discredited to the point of not being able to serve in any other branch of service.  He urges the Board to grant him an honorable discharge and correct an injustice committed some 19 years ago.

9.  The applicant provides:

   a.  an undated “response to allegations of misconduct” from him to his immediate supervisor, which was signed by him (the applicant) and an Arkansas Army National Guard Judge Advocate General;
   
   b.  a February 1991 memorandum from the Office of the Judge Advocate, National Guard Bureau, regarding the applicant’s recommended administrative separation action;
   
   c.  copies of documents showing his awards and commendations;
   
   d.  documents associated with his civilian education;
   
   e.  a summary of his recent medical evaluation;
   
   f.  four statements of support;
   
   g.  a statement from his spouse; and
   
   h.  a copy of his March 1991 National Guard Bureau Form 22 (Report of Separation and Record of Service).
   

10.  The applicant also provides a variety of documents extracted from his Official Military Personnel File which he submitted in response to an earlier notification from the Board that his case could not be reviewed because his records were not available.

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.  The applicant entered military service as a Regular Army enlisted Soldier in 1962.  After an initial period of active duty, he enlisted in the Army National Guard in 1975 and in 1982 was ordered to active duty as a member of the AGR program with the Arkansas Army National Guard recruiting element in Little Rock.  By April 1989 he was promoted to the rank of Sergeant Major and assumed duties as the Operations Sergeant Major.

3.  In a performance evaluation report, rendered in November 1987 when the applicant was serving in the rank of Master Sergeant, his indorser (Major H, the same officer the applicant argues began to discredit him in 1990), rated the applicant with a score of 124 out of a possible 125, deducting the single point as a result of the applicant having failed a physical fitness test in September 1987.  Major H noted the applicant should be promoted ahead of his peers, that he should continue his military and civilian education and be afforded the opportunity to attend the Sergeant Majors Academy at the earliest possible date.

4.  In January 1990 two performance evaluation reports were rendered on the applicant, one an annual report with an ending date of February 1989 and the second a change of rater report with an ending date of September 1989.  On both reports the applicant’s senior rater was Lieutenant Colonel F, the officer the applicant argues “made it plain…he wanted his man” in the applicant’s position.  On the report ending in February 1989 Lieutenant Colonel F placed the applicant in the third block for overall performance (successful) and overall potential for promotion and/or service in positions of greater responsibility (superior).  In the report ending in September 1989 Lieutenant Colonel F placed the applicant in the second block for both rating categories.

5. On 20 March 1990 the applicant’s rater, Major H, counseled the applicant regarding a bill resulting from the illegal purchase of goods and service by the applicant which were specifically not authorized and for having government equipment (including a camera and VCR monitor) in his residence and that in spite of having a hand receipt for the equipment he (the applicant) did not see anything wrong with having the equipment at his house.

6.  In June 1990 the applicant was rated by Major H, who had previously served as his indorser on the 1987 report.  This report evaluated the applicant’s performance during the period October 1989 through May 1990.  Major H noted the applicant:

* Was counseled for having government equipment at his domicile
* Had admittedly not had the proper attitude
* Failed to properly coordinate activities for which he was responsible

7.  On this same evaluation report the applicant’s senior rater, Lieutenant Colonel F (who had previously served as the applicant’s indorser on two earlier reports) noted the applicant:

* Continued to betray the faith and confidence of his superiors
* Failed to maintain the respect of his subordinates
* Demonstrated little initiative in the accomplishment of his assigned duties

8.  On 30 September 1990 the applicant was released from active duty and the AGR program for misconduct under the provisions of National Guard Regulation 600-5, paragraph 6-5c(1) (inappropriate professional and personal conduct).  His service was characterized as honorable and he was separated in the rank of Sergeant Major.  He was credited with a total of 11 years, 7 months, and 15 days of active Federal service.  His September 1990 DD Form 214 shows entitlement to the Combat Infantryman Badge, but in October 1990 a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued to remove entitlement to the Combat Infantryman Badge.  Documents associated with the applicant's separation from the AGR program were not in records available to the Board.




9.  On 4 November 1990 a board of officers convened and found the applicant fraudulently wore the following:

* Two overseas bars
* Combat Infantryman Badge
* Novice Parachute Badge
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal
* Former Wartime Service Shoulder Sleeve Insignia

10.  The Board also found the applicant: 

   a.  gained promotion points from the entry of awards, badges, patches and decorations in his official field 201 file that were not awarded;
   
   b.  fraudulently misrepresented his academic records to further his career and personal gain;
   
   c.  used extremely poor judgment in falsifying claims of service in the Republic of Vietnam for personal glorification and gain;
   
   d.  falsified documents and statements which indicated a clear pattern of fraud to further his career; and
   
   e.  brought discredit to the NCO Corps, Senior NCOs, the Arkansas Army National Guard, and the United States Army.

11.  The applicant failed to appear before for the board and his counsel indicated the applicant was working and had decided to waive his right to appear.

12.  The board recommended the applicant be discharged from the Arkansas Army National Guard with an under other than honorable conditions discharge and reduced to the rank of private/E-1.

13.  On 29 November 1990 the Adjutant General of the state of Arkansas recommended to the Chief, National Guard Bureau, that the recommendation of the separation board be approved.

14.  On 4 February 1991 the Office of the Judge Advocate, National Guard Bureau, noted the separation action pertaining to the applicant was legally sufficient; however, it noted a less than honorable conditions discharge may be inappropriate.  The signing officer indicated the applicant claimed the erroneous awards, badges, patches, and decorations were “generally due or that there may have been some confusion as to whether they were due.”  He noted the applicant admitted he did not serve in Vietnam and was not entitled to wear any such service ribbons.  However, the officer did note the applicant’s personnel record reflected numerous awards, certifications, favorable comments, medals, and evaluations, which were not in dispute.  It was noted the applicant’s record appeared to be unblemished up until the last year when he began to receive counseling and as such suggested that a discharge under other than honorable conditions, while legally sufficient, might be inappropriate.

15.  On 20 February 1991 the Chief, National Guard Bureau approved the applicant’s discharge under other than honorable conditions and reduction to pay grade E-1.

16.  On 5 March 1991 the applicant was discharged from the Arkansas Army National Guard for acts or patterns of misconduct under the provisions of National Guard Bureau Regulation 600-200, paragraph 8-26q.  His service was characterized as under other than honorable conditions and he was reduced to pay grade E-1 under the provisions of National Guard Bureau Regulation 600-200, paragraph 6-44c.

17.  Documents provided by the applicant and some of which formed the basis of the official file reviewed by this Board do indicate multiple letters and certificates of appreciation/achievement and/or commendation, several personal decorations, including two Army Good Conduct Medal, three Army Commendation Medals, an Army Achievement Medal, and two Arkansas Service Awards.  His performance evaluation reports, until his last report, were all complimentary.  The applicant was awarded an Associate of Science degree in 1988 in general studies.

18.  The undated “response to allegations of misconduct” memorandum, from the applicant to Lieutenant Colonel F, which was signed by the applicant and an Arkansas Army National Guard Judge Advocate General who served as his counsel, noted the applicant did not agree to accepting involuntary separation from the AGR program and requested an administrative hearing.  His counsel argued:

With respect to the allegations of misconduct, it is important to keep in mind that the recommendations of the investigating officer constitute only an opinion and are not binding or evidence of misconduct.  In fact, several of the questioned regulations were read very strictly by the officer during the investigation.  The result is the creation of an appearance of an all-out effort to find something improper so [the applicant’s] ‘slot’ can be filled by someone else.  This appearance of a ‘witch hunt’ is further compounded by the manner in which some of the evidence was obtained….

19.  Counsel also noted the applicant admits he used poor judgment in exaggerating his experience, but denies that neither (regarding Vietnam and college) were used to further his position in the Guard.

20.  The four statements submitted by the applicant as character references note the applicant:

* Could not do anything illegal or immoral even in the slightest sense
* Is honest, truthful and sincere in all his dealings
* Is always ready to help those in need and difficult circumstances
* Is above reproach in his church and community
* Loves our Nation and is a great patriot
* Is a man of honesty and integrity and with a deep sense of wisdom

21.  One of the statements, submitted by an individual who worked with the applicant in recruiting with the Arkansas National Guard noted that then Major H was out to replace the applicant and “what they did was most shocking and very unfair….”

22.  The applicant’s spouse also submitted a statement in which she recounted the applicant’s career.  She states her spouse served in Ethiopia, East Africa for 22 months between 1962 and 1963 while she maintained a home in Arkansas.  She also states that her spouse after being accepted in an AGR position as a recruiter was promoted at a steady pace to the rank of master sergeant.  She notes “that is when the trouble began.”  She states when her spouse was placed in the E-9 slot the political problems started and jealousy was all around.  She maintains there was a battle going on in the officer ranks “with us caught in the middle.”  She states when they received an unbelievable “without honor” discharge they could not believe this could happen, that facts could be twisted and their record destroyed.  She states they were devastated.  The applicant's spouse concludes her husband served his country well and that the state military department let him down.  She noted they have an honorable discharge from the active Army and deserves no less than the same from the Arkansas Army National Guard.

23.  The applicant’s available record doesn’t contain any evidence he applied to the Army Discharge Review Board to have his discharge upgraded within the applicable timeframe.


24.  References:

	a.  National Guard Regulation 600-5 (The Active Guard Reserve Program – Title 32, Full-time National Guard Duty), paragraph 6-5, provides for the involuntary separation for cause from full-time National Guard duty including for inappropriate professional and personal conduct.  

	b.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26q, then in effect, provided for the discharge from State Army National Guard and/or Reserve of the Army for acts or patterns of misconduct.  It states that an administrative discharge board was required, unless waived by the Soldier, when the separation authority considers discharge under other than honorable conditions would be appropriate and/or if the Soldier had 6 or more years of total military service.

	c.  National Guard Regulation 600-200, paragraph6-44c, stated that on determination that a Soldier is to be discharged with a discharge certificate under other than honorable conditions, the Soldier will be immediately reduced to PV1 without board action.  The State AG will direct reduction to PV1.  If a discharge is approved under other than honorable conditions, but is suspended, the Soldier will not be reduced under this paragraph.

	d.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  In pertinent part, it states that the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record.  

DISCUSSION AND CONCLUSIONS:

1.  It is unclear why the applicant believes his years of service precluded his reduction to pay grade E-1 as a result of his discharge under other than honorable condition.  The provisions of National Guard Regulation 600-200 clearly provides for the reduction of enlisted Soldiers to pay grade E-1 when they are discharged under other than honorable conditions.

2.  The applicant essentially argues two individuals, Major H and Lieutenant Colonel F, were, in effect, out to derail his career in order to promote their own 


interests.  However, the evidence available to the Board shows both those individuals previously provided the applicant with complimentary evaluation reports and rendered the unfavorable report only after separation actions were initiated.  There is no evidence, and the applicant has not provided any, confirming his separation from the AGR program and subsequent discharge from the Arkansas Army National Guard were retaliatory or unwarranted.

3.  The applicant admitted he had government property at his home and that he used the property for his personal use.  The statement from the officer in the Office of the Judge Advocate General, National Guard Bureau, admitted he (the applicant) did not serve in Vietnam and was not entitled to wear the associated service ribbons.  The administrative separation board concluded the applicant received promotion points based on the unauthorized awards.  While the applicant may have had a previous stellar record, and in fact had received numerous awards and decorations, clearly the issues which formed the basis of his separation actions were significant transgressions for an individual serving at the highest enlisted rank of the Army National Guard and as such warranted the resulting separation and characterization of his service.

4.  The applicant had an opportunity to plead his case before his administrative separation board and yet his counsel indicated he “was working and had decided to waive his right to appear.”  There is no indication or evidence provided by the applicant which suggests that board was stacked against him and a waste of his time as he has suggested.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for his misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request.

6.  The applicant’s post service accomplishments, passage of time, and the support of his spouse and other acquaintances, is noted.  However, none of these is sufficiently mitigating to warrant the relief requested.

7.  In view of the foregoing, there is no basis for granting the applicant's request.





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)                                         AR20090015082





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ABCMR Record of Proceedings (cont)                                         AR20090015082



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