IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100011956 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* the applicant's involuntary separation from the Active Guard Reserve (AGR) program be set aside and that he be reinstated in the AGR program with associated back pay and benefits
* all references to his separation be removed from his record
* a personal appearance

2.  Counsel states the applicant was improperly released from the AGR program and his release was in contravention of National Guard regulations, the Administrative Procedures Act, and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. 

3.  Counsel states the applicant enlisted in the Louisiana Army National Guard (LAARNG) in July 1980 and attained the rank of sergeant first class.  At the time of separation he was a member of the AGR program and had over 18 years of active service.  He was charged under the Louisiana Code of Military Justice with recruiting violations (conspiracy and unlawful enlistment of recruits).  On 
17 November 2008, in accordance with his pleas, he was convicted by a special court-martial and sentenced to a fine of $200.00 and reduction to pay grade E-6.  

4.  Prior to the court-martial conviction, the applicant was notified he would be separated from the AGR program on 17 June 2008 under National Guard Regulation (NGR) 600-5 (The Active Guard Reserve Program Title 32, Full-Time National Guard Duty (FTNGD)).  His separation was not approved by the Secretary of the Army or submitted to the National Guard Bureau (NGB).  A federal court refused to grant a temporary restraining order to prevent his separation.  He was separated on 1 October 2008.  

5.  The LAARNG failed to provide him the due process (counseling and representation by a Judge Advocate General (JAG) officer) required by NGR 600-5, Department of Defense Directive 1332.14 (Enlisted Administrative Separations), and Army Regulation (AR) 135-178 (Army National Guard (ARNG) and Army Reserve Enlisted Administrative Separations).  The convening authority did not comply with DOD Directive 1332.14 or AR 135-178.

6.  The applicant currently suffers from several medical problems, he requested a medical evaluation as part of his rebuttal, a medical evaluation board was not convened as required by AR 135-178, and medical processing takes precedence over separation proceedings.  The convening authority should not have separated him until he had been medically evaluated.  

7.  Counsel provides a 20-page brief with 15 exhibits outlined in page ii of his brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the LAARNG on 1 July 1980.  He served on active duty in an AGR status from 10 December 1984 until 5 February 1998.  He attained the rank of sergeant first class on 15 December 2002.  He again entered active duty on 1 June 2005 in an AGR status.

2.  His Noncommissioned Officer Evaluation Report (NCOER) covering the period 1 June 2007 through 30 September 2007 shows he was rated "Success (Meets standard)" for Physical Fitness and Military Bearing.  He was rated "Successful" for his overall performance and "Superior (2)" for his overall potential for promotion and/or service in positions of greater responsibility by his senior rater.      

3.  On 13 March 2008, the applicant made a sworn statement (DA Form 2823) which states he falsified GED [General Educational Development] certificates and JROTC [Junior Reserve Officers' Training Corps] certificates for enlistment purposes. 

4.  On 17 June 2008, he was notified of his pending involuntary separation from the AGR program due to patterns of misconduct.  Records show he requested assistance with his rebuttal from the JAG office on three separate occasions.  His rebuttal, dated 9 July 2008, states, in pertinent part, he has been seeing many civilian doctors for ailments, he has been having severe chest pains for about 
12 years, it has been determined he has the Lyden Factor V blood disorder, and he requests a medical evaluation prior to discharge. 

5.  On 10 July 2008, a recommendation was initiated to terminate the applicant from participating in the AGR program due to misconduct (falsifying enlistment documents by creating fake GED certificates for four applicants to allow enlistment into the ARNG; falsifying enlistment documents by creating fake JROTC certificates/documentation for three applicants to allow promotion to higher grades at time of enlistment into the ARNG; and attempting to cover up this misconduct by telling an enlistee to destroy the evidence of the fake GED certificate).

6.  On 12 August 2008, the Adjutant General of Louisiana approved the applicant's involuntary separation from the AGR program.

7.  Orders, dated 22 August 2008, show he was released from active duty in an AGR status effective 1 October 2008.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 October 2008  shows he was honorably released from active duty in the rank of sergeant first class on 1 October 2008 under the provisions of NGR 600-5, chapter 6, for completion of required active service.  Item 12b (Separation Date This Period) of this DD Form 214 shows the entry 
"2008 10 01."  Item 12c (Net Active Service This Period) shows he completed 
3 years, 4 months, and 1 day.  Item 12d (Total Prior Active Service) shows he had 14 years, 10 months, and 27 days of prior active service.  He had completed a total of 18 years, 2 months, and 28 days of creditable active service.  Item 
23 (Type of Separation) shows the entry "RELEASE FROM ACTIVE DUTY."  Item 25 (Separation Authority) shows the entry "NGR 600-5 CHAPTER 6."  Item 26 (Separation Code) shows the entry "LBK."  Item 28 shows the entry "COMPLETION OF REQUIRED ACTIVE SERVICE."  

9.  On 9 November 2008, he signed a pretrial agreement which states, in pertinent part, "I acknowledge that I have been allowed the opportunity to retire form [sic] the National Guard and will request retirement within two working days of the imposition of sentence."

10.  On 17 November 2008, he pled guilty pursuant to a pretrial agreement and was convicted by a special court-martial of conspiring to effect the enlistment of ineligible recruits, unlawful enlistment, signing false official enlistment documents with intent to deceive, and wrongfully attempting to impede an investigation.  He was sentenced to pay a $200.00 fine, a reprimand, to forfeit 2/3 pay and allowances for 4 months, and a reduction to staff sergeant/E-6.  The convening authority approved the sentence. 

11.  Orders, dated 8 December 2009, show he was reduced from sergeant first class to staff sergeant effective 17 November 2009.

12.  Orders, dated 10 December 2009, show he was honorably discharged from the ARNG. 

13.  His NGB Form 22 (Report of Separation and Record of Service) shows that on 10 December 2009 he was honorably discharged from the ARNG in the rank of staff sergeant and transferred to the Retired Reserve.

14.  On 1 November 2010, the State of Louisiana Court of Appeal affirmed his conviction by special court-martial and the associated sentence.

15.  There is no evidence which shows the applicant was diagnosed with any mental or medical condition prior to his discharge.  

16.  A review of the applicant's official military personnel file (OMPF) on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of his separation orders, dated 22 August 2008, and discharge orders, dated 10 December 2009.

17.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  That office recommends the applicant's AGR tour be notionally extended from the date of his separation (1 October 2008) to the date of his voluntary retirement from the LAARNG on 10 December 2009.  The opinion points out:

* the applicant was convicted by a court-martial of serious allegations of misconduct as a recruiter
* the misconduct was admitted
* prior to the conclusion of the court-martial the LAARNG removed him from the AGR program and reverted him to M-Day status (an M-Day status member performs weekend drill)
* he retired from the ARNG as part of a plea bargain to settle the criminal charges in the court-martial proceedings 
18.  The advisory opinion states:

	a.  Irregularities occurred in the separation of the applicant from the AGR program and cites AR 135-18 (The Active Guard Reserve Program), chapter 5, section 5-1(b).

	b.  Evidence has not been provided indicating guidance in NGR 600-5, chapter 6, section 6-5-(a) was followed.

	c.  His Retirement Points History Statement, dated 18 June 2010, shows he earned 18.23 years of active duty points and 26 years of creditable service for retired pay.  At the time of his involuntary release from the AGR program he had over 18 years of service.

	d.  The necessary approval for the applicant's release was never obtained by LAARNG per NGR 600-5, chapter 6, section 6-1(1).

	e.  There also appears to have been shortcomings in the LAARNG providing the applicant military counsel to challenge his removal from the AGR program.  He promptly requested assistance from JAG per an email, dated 18 June 2008.  The same day, he received a response instructing him to contact Trial Defense Services and was given a point of contact (POC) for the purpose of preliminary screening and referral to an available defense attorney.  Documentation shows he sent an email to the POC on 20 June 2010 and a second request was sent on 23 June 2010.  There is no evidence that Trial Defense Services responded to his email for assistance and/or if a military attorney was made available to assist him with his rebuttal.  AR 135-178 provides requirements for board proceedings, notice requirements, and right to legal counsel.  The applicant was represented by the civilian counsel who is representing him in this ABCMR appeal.  However, counsel claims he was not familiar with military law and could not properly represent the applicant.
	
   f.  As part of an agreed settlement of the court-martial proceedings, the applicant agreed to retire from the LAARNG in conjunction with entering a guilty plea.  The agreement was accepted and approved on 13 November 2008 by all concerned parties.  He was retired pursuant to LAARNG order 344-1238, dated 
10 December 2009.  

	g.  AR 135-178, chapter 1, section 1-11(a) states, in pertinent part, a Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay (Title 10, Section 12732, U.S. Code (10 USC 12732) will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.  [Note:  This provision applies to non-regular retired pay.  This would not apply here as he already had a 20-year letter.] 

	h.  The Chief, Personnel Policy Division, NGB, recommends the date of the applicant's release from the AGR program be adjusted to 10 December 2009, the day he was voluntarily retired from the ARNG pursuant to the plea agreement in the court-martial proceedings.  His Retirement Points History Statement should be revised accordingly; he should receive any benefits, back pay, or allowances due as a result of this adjustment. 

19.  On 6 December 2010, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 18 December 2010, counsel responded.  In summary, he states the applicant concurs with the irregularities cited in paragraphs 3c and 3d of the advisory opinion but he does not concur with paragraph 3e (recommendation that the date of the applicant's release from the AGR program be adjusted to 10 December 2009, the day he was voluntarily retired from the ARNG pursuant to the plea agreement in the court-martial proceedings; his Retirement Points History Statement should be revised accordingly, and he should receive any benefits, back pay, or allowances due as a result of this adjustment).

20.  Counsel states:

* back pay should be paid at the E-7 rate through 17 November 2009
* the plea agreement was suspended when the applicant filed the Notice of Appeal
* he was coerced into requesting retirement
* he relied to his detriment on the statement that his retirement was suspended/rescinded
* he is still eligible for recall to active duty in case of a national emergency
* if he is not retired, he is still eligible for severance pay
* his release was in contravention of the Administrative Procedures Act, Due Process Clause of the Fifth Amendment to the U.S. Constitution
* equity requires him to be restored to the AGR program

21.  Counsel concludes by requesting the applicant's separation action be set aside and that he be returned to active duty with associated back pay and benefits; that all references to the separation action be removed from his record; that he be allowed to retire as of the date of the action on his appeal by the Court of Appeals; and that his record be corrected to reflect sufficient service until that date.  As an alternative, the applicant should receive severance pay and full pay as recommended in the advisory opinion and that pay should be awarded at the rank of E-7 until the effective date of the reduction. 
22.  AR 135-18, chapter 15, section 5-1(b), states all separations, voluntary or involuntary, from the AGR program will be governed by the following regulations:  ARNG Soldiers, released from FTNGD, while serving in the AGR program under the provisions of Title 32 U.S. Code are subject to separation under the provisions of AR 135-175 (Officers) or AR 135-178 (Enlisted), or as further provided under the provisions of NGR 600-5. 

23.  NGR 600-5, chapter 6, section 6-1(1) states AGR Soldiers within 2 years of becoming eligible for retired or retainer pay will not be involuntarily released from FTNGD unless release is approved by the Secretary of the Army.

24.  Table 5-1 (Selective Retention) of NGR 600-5 states AGR enlisted Soldiers in grade E-6 and below will be mandatorily released upon completion of 20 years of active Federal service.

25.  NGR 600-5, chapter 6, section 6-5(a) states counseling or a letter of reprimand will be initiated by a commander or supervisor when an individual's degree of efficiency, manner of performance of duty, military conduct, or the commission of any derogatory act makes such action appropriate.  Normally, counseling statements or a letter of reprimand will be documented in an individual's military records according to AR 600-37 before initialing involuntary separation actions against an AGR member.

26.  AR 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and the Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a 
document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records (ABCMR), Department of the Army Suitability Evaluation Board (DASEB), Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command (TAPC) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, or the Chief of the Appeals Branch of the National Guard Personnel Center.

27.  AR 600-8-104, Table 2 (Composition of the OMPF), states, in pertinent part, that separation orders (including discharge, relief from active duty, retirement, and release by virtue of a void enlistment or induction) will be filed in the service portion of the OMPF.

28.  AR 635-200, chapter 12 sets the policies and procedures for voluntary retirement of Soldiers because of length of service.  In pertinent part, it states that a Soldier who has completed 20 years active federal service and who has completed all required service obligations is eligible to retire.

29.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  

30.  AR 15-185 (ABCMR) governs operations of the ABCMR.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  It further states the Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions, the NGB advisory opinion, and counsel's rebuttal to the NBG advisory opinion were carefully considered, and it is determined there is sufficient evidence to support partial relief in this case.  

2.  Court-martial charges were preferred against the applicant for falsifying enlistment documents and obstructing justice.  The misconduct was admitted.  On 10 July 2008, prior to the conclusion of his court-martial action, a recommendation was initiated to terminate him from the AGR program.  On 
12 August 2008, the Adjutant General of Louisiana approved his involuntary separation from the AGR program.  He was released from active duty and terminated from the AGR program on 1 October 2008.  He subsequently retired from the LAARNG on 10 December 2009 as part of a plea agreement in accordance with his special court-martial.  On 1 November 2010, the State of Louisiana Court of Appeal affirmed his conviction by special court-martial and the associated sentence.  Therefore, there is insufficient evidence to show he should be reinstated in the AGR program.  

3.  The NGB advisory opinion points out irregularities occurred in his separation process.  At the time the applicant was involuntarily released from the AGR program he had over 18 years of active service.  The governing regulation states AGR Soldiers within 2 years of becoming eligible for retired pay will not be involuntarily released from FTNGD unless release is approved by the Secretary of the Army.  His separation was not approved by the Secretary of the Army or submitted to the NGB for approval.  Therefore, as a matter of equity, his records should be corrected to show he completed 20 years of active federal service by extending his AGR tour from the date of his separation (1 October 2008) to 
31 July 2010.  It would be appropriate to void his discharge orders, dated 
22 August 2008, correct his military records to show he completed over 20 years of active federal service and retired on 31 July 2010, and amend his Retirement Points History Statement and DD Form 214 for the period ending 1 October 2008 accordingly.  In addition, his NGB Form 22 should also be amended to show he was discharged from the LAARNG on 31 July 2010 and transferred to the Retired Reserve.

4.  Since the applicant was reduced to pay grade E-6 by the special court-martial, retirement in pay grade E-7 is not appropriate.

5.  Although counsel contends the applicant should not have been separated until he had been medically evaluated, there is no evidence which shows he was diagnosed with any mental or medical conditions prior to separation from the AGR program or retirement from LAARNG or that he was unable to perform his military duties.  Although the applicant stated, as part of his appeal of the involuntary separation, that he was seeing many doctors for ailments and had been having severe chest pains for about 12 years, his NCOER for the period ending 30 September 2007 showed he was well able to perform his military duties.

6.  All reference to the applicant's release from active duty on 1 October 2008 and retirement from the LAARNG on 10 December 2009 should be removed from his OMPF.   

7.  The applicant's continuation in the AGR program beyond 20 years of active service is not appropriate.  The governing regulation states AGR enlisted Soldiers in pay grade E-6 and below will be mandatorily released upon completion of 20 years of active Federal service.  It is unlikely, given the circumstances, he would have received a waiver to remain in. 

8.  The applicant's request to appear before the Board was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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 State ARNG records and Department of the Army records of the individual concerned be corrected by:

	a. voiding his discharge orders, dated 22 August 2008;

	b.  voiding his discharge orders, dated 10 December 2009;

	c.  deleting the entry in item 12b of his DD Form 214 for the period ending 
1 October 2008 and replacing it with the entry "2010 07 31";

	d.  deleting the entry in item 12c and replacing it with the entry "0005 01 30";
   
   e.  deleting the entry in item 23 and replacing it with "Retirement";
   
   f.  deleting the entry in item 25 and replacing it with "AR 635-200, Chapter 12";
   
   g.  deleting the entry in item 26 and replacing it with "RBD";
   
   h.  deleting the entry in item 28 and replacing it with "Sufficient Service for Retirement";   
   
   i.  amending his NGB Form 22 to show he was discharged from the LAARNG on 31 July 2010 and transferred to the Retired Reserve;
   
   j.  correct his Retirement Points History Statement to show he was on active duty from 1 October 2008 through 31 July 2010 with the appropriate retirement points; 
   
   k.  removing all references to his release from active duty on 1 October 2008 and retirement from the LAARNG on 10 December 2009 from his OMPF; and
   
   l.  paying him any and all back pay and allowances and retired pay due as a result of these corrections.   

2.  The Board further determined that the evidence presented was 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 setting aside his involuntary separation from the AGR program, reinstating him into the AGR program, granting him back pay in pay grade E-7, and a personal appearance.




      _______ _   _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)                                         AR20100011956



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ABCMR Record of Proceedings (cont)                                         AR20100011956



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