IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100012075 


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 involuntary separation from the Active Guard Reserve (AGR) Program be overturned and that he be reinstated in the AGR Program.  He also requests a personal appearance.

2.  The applicant states:

* he was involuntarily separated "from the Michigan Army National Guard (MIARNG) AGR Program based on allegations that were false and proven to be so at [his] Michigan Court-Martial Jurisdiction Section 32 [sic] hearing"
* The Adjutant General (TAG), State of Michigan, refused to overturn his separation after all allegations were dismissed and the case was closed

3.  In his appeal memorandum, the applicant describes the history of his case and states that all of the adverse actions stem from the same allegations and investigation.  He indicates his recruiting commander did not like him (personality conflict) and the allegations and investigation of him began almost immediately after the recruiting commander took over.  In December 2006, he was accused of wrongfully terminating Specialist (SPC) S____ in retaliation for her making an Inspector General (IG) complaint against some of his recruiting team members.  SPC S____ was not terminated by him or anyone else and no retaliation action was taken against her by him.  The government dropped the allegation at the end of the Article 32 hearing because it was clearly not supported by the evidence.  SPC S____ testified under oath she was told by a master sergeant that if she wanted to go on the movement for President Ford's funeral she would need to resign her position.  He contends it took 2 years and responses to many adverse actions before his name was cleared.  He points out two problem troops [sic] came forward and made claims that he had an inappropriate relationship with a private.  He denies this claim and states he did have a relationship with the private after he had been removed from his position and she was assigned to another unit.

4.  The applicant states the Army Regulation 15-6 investigating officer (IO) left multiple statements that supported him out of her investigative report because she did not like him.  He faced three allegations:  (1) alleged retaliatory firing of SPC S____, (2) alleged inappropriate sexual relationship with a private, and (3) alleged misuse of government equipment.  In addition to being removed from his recruiting position, he was involuntarily separated from the AGR Program.  He was then recommended for administrative separation from the Army National Guard.  That action was withdrawn and court-martial charges were preferred against him instead.

5.  The applicant states that after receiving all of the evidence presented by the government and listening to all of the testimony presented during the Article 32 hearing, the Article 32 hearing officer recommended all charges against the applicant be dropped because the government and the "evidence" failed to establish even a prima facie case or probable cause for the charges.  He states the Article 32 hearing in this case was a formal investigation into the previous informal Army Regulation 15-6 investigations.

6.  The applicant further states:

	a.  His claim of error is simple.  He was accused of things he did not do and was involuntarily separated from the AGR Program based on these false allegations.  As was exposed during his Article 32 hearing, the conclusions reached during the previous Army Regulation 15-6 investigations were born from biased individuals accepting rumor and assumption as evidence and fact.  The arguments raised initially by his attorney were vindicated at the Article 32 hearing.  He was literally exonerated in that hearing.

	b.  His involuntary separation from the AGR Program was imposed in accordance with National Guard Regulation 600-5 (The AGR Program).  However, that regulation requires that a cause must exist for involuntary separation.  Cause did not exist in his case because he did not do what was alleged.  That was exposed during the Article 32 hearing and clearly commented upon by the Article 32 IO.  If there was no cause for his separation, his separation was erroneous.

	c.  His claim of injustice is equally simple.  Once the allegations against him were proven to be baseless at the Article 32 hearing, the IO explained the utter lack of support for the allegations and TAG himself ordered the allegations dismissed and the case closed.  It was a blatant injustice for TAG not to approve his subsequent AGR appeal submission because he had dismissed the allegations upon which the AGR separation was based.

	d.  He had precedent on his side for reinstatement in the AGR Program.  He cites a 2004 Army Board for Correction of Military Records (ABCMR) case wherein the ABCMR ordered the Indiana TAG to reinstate a recruiter who was exonerated of the allegations he faced, but was still separated from the AGR Program by the Indiana TAG.

	e.  The MIARNG has mishandled his case and it has been marked by injustices:  (1) unlawful command influence by his recruiting commander; (2) an Army Regulation 15-6 IO who was biased, left supporting witness statements out of her report, and engaged in sexual misconduct which went unpunished; (3) the Army Regulation 15-6 IO's notes have "gone missing"; (4)  the Army Regulation 15-6 reports are redacted and unredacted versions of the reports have "gone missing"; (5) the Army Regulation 15-6 reviewing Judge Advocate General (JAG) engaged in sexual misconduct that went virtually unpunished; (6) the Army JAG officers handling the military justice aspect of the case ignored the law regarding statutes of limitation, subpoena power, and proper referral of a military court-martial; and (7) in addition to the Article 32 IO concluding that the evidence didn't support any of the allegations, the allegation that started this whole case – the claim of retaliatory termination – was so thoroughly discredited by the individual who the government alleged was terminated, that the prosecuting JAG officer withdrew the charge at the conclusion of the Article 32 hearing.

7.  The applicant described his prior Army career accomplishments.  He states he has been the subject of false allegations, character assassination, and officers who abused their positions and power for 2 years until an outsider (Article 32 IO) was brought in and exposed the case for what it was.  Despite this, his involuntary separation from the Michigan AGR Program has been upheld and, while he is technically still a member of the MIARNG, he has no unit or position.

8.  The applicant provides:

* 8-page appeal memorandum
* 3 volumes of documents with 16 enclosures outlined in the table of contents

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army, the applicant enlisted in the MIARNG on 26 January 2001 and entered active duty in the AGR Program on 1 March 2001.  He was promoted to master sergeant on 1 October 2005.
 
2.  On 8 January 2007, a flag was initiated against the applicant for adverse action.

3.  The applicant provided a DA Form 4856 (Developmental Counseling Form), dated 16 January 2007, which states he was relieved of his noncommissioned officer in charge duties as an immediate step in response to his firing of a Soldier in retribution for her IG complaint.

4.  On 16 January 2007, an Army Regulation 15-6 investigation was initiated to investigate the circumstances surrounding allegations against him that he had inappropriate relationships and had misused government property.   On 23 March 2007, the Army Regulation 15-6 IO determined the evidence supported the allegations that the applicant had inappropriate relationships and had misused government property (cellular telephone, Blackberry, and computer).  The IO recommended that the applicant be reduced in grade and subsequently terminated from the AGR Program.  On 18 April 2007, a legal review of the Army Regulation 15-6 investigation determined there was sufficient evidence to support the findings that the applicant misused government property, destroyed government property to hinder an Army Regulation 15-6 investigation, made a false statement, and had an inappropriate relationship with a private first class.

5.  On 28 February 2007, an Army Regulation 15-6 investigation was initiated to investigate the circumstances surrounding the allegations that the applicant had inappropriately manipulated enlistments of subordinate recruiters in order to obtain personal gain for himself or others under his command.  On 23 March 2007, the Army Regulation 15-6 IO determined evidence did exist to support that the applicant inappropriately manipulated enlistments of subordinate recruiters in order to obtain personal gain for others under his command.  The IO recommended a Process Action Team commence immediately to establish policy and procedures for accession credit, both at the State level and data warehouse, a tracking system be put in place immediately to document all changes to data warehouse as this impacts eligibility or lack of eligibility for recruiter incentive payments, and the Task Force East sergeant major be tasked with resolving the discrepancies found pertaining to accession credit for the applicant's team.  On 26 April 2007, a legal review of the Army Regulation 15-6 investigation determined there was sufficient evidence to support the findings that the applicant had inappropriately manipulated enlistments of subordinate recruiters for personal gain.

6.  The applicant provided a memorandum for predetermination for involuntary separation from the AGR Program, dated 4 May 2007.  This memorandum states:

* the applicant's pattern of misconduct is very serious and adversely impacts the Recruiting and Retention Command's ability to accomplish its mission
* his subsequent retention will hurt the military discipline, good order, and morale of the MIARNG full-time support force
* this packet is comprised of three Army Regulation 15-6 investigations
* one Army Regulation 15-6 IO found the applicant terminated a Soldier from Full-Time National Guard Duty in retribution for an IG complaint that she filed against other recruiters on the applicant's team
* one Army Regulation 15-6 IO found the applicant had an inappropriate relationship with one of his recruiter's enlistees, he misused government property to support this relationship as well as multiple other relationships, he made false official statements as to his marital status, and he destroyed government property to hinder the Army Regulation 15-6 investigation
* one Army Regulation 15-6 IO found the applicant inappropriately manipulated enlistments between his recruiters and several recruiters benefited monetarily from this manipulation to the detriment of others

7.  The applicant provided a 50-page rebuttal to the findings of three Army Regulation 15-6 investigations.

8.  On 5 May 2007, a request to initiate a recommendation for involuntary separation was approved.  On 16 May 2007, a recommendation that the applicant's participation in the AGR Program be terminated was initiated.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 12 December 2007 under the provisions of National Guard Regulation 600-5, paragraph 6-5c(4), for misconduct.

10.  On 16 March 2009, a flag was initiated against the applicant for adverse action.



11.  On 10 March 2009, charges were preferred against the applicant for three specifications:

* he terminated a member (SPC S____) of the recruiting command who was on active duty for special work orders in retaliation for initiating a complaint against three members of his recruiting team
* he had inappropriate sexual relations with a private from on or about periods beginning in 2006 through early 2008
* on or about periods beginning in 2006 through 2007 he misused government equipment by using his government-issued Blackberry to send and receive over 1,800 personal text messages and used the Blackberry to make and receive nearly 4,000 minutes of personal telephone calls

12.  Trial by general court-martial was recommended.

13.  On 27 July 2009, an Article 32 investigation was conducted and the IO recommended that the three charges preferred against the applicant be dismissed.  After considering all of the testimony and evidence presented, he determined that probable cause for the charges was not established.  The flag was removed against the applicant on 11 September 2009.

14.  On 29 October 2009, counsel submitted an appeal of the applicant's involuntary separation from the AGR Program to the Michigan TAG.  On 29 December 2009, the Michigan TAG responded that he was not persuaded that the applicant's termination was in error.  He also stated the agency was not in a position to rehire the applicant in any full-time capacity.

15.  The applicant was laterally appointed to first sergeant effective 20 April 2010.  He is currently assigned to the 460th Chemical Company in Augusta, Michigan.

16.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  That office recommends disapproval of the applicant's request to be reinstated into the AGR program even though the charges were dismissed at the Article 32 hearing.  The opinion points out:

	a.  State TAG's have the authority to approve or disapprove members of the Army National Guard to enter into the State AGR Program or for continuation in the program.

	b.  State TAG's can also terminate the member at any time as a result of an investigation of misconduct in accordance with National Guard Regulation 600-5.

	c.  The applicant stated he was provided with a redacted copy of the Army Regulation 15-6 investigation and the State legal office did not have a copy of an unredacted Army Regulation 15-6 investigation.

	d.  On 3 April 2008, TAG appointed members for a separation board even though the applicant was already separated effective 12 December 2007.

	e.  The Michigan Military Personnel Office provided their office with a copy of the legal review of the Army Regulation 15-6 investigation, dated 26 April 2007, and the informal Army Regulation 15-6 investigation report, dated 23 March 2007, reference inappropriate manipulation of enlistment of subordinate recruiters in order to obtain personal gain for himself and others under his command.  Another Army Regulation 15-6 investigation was also completed on 23 March 2007 for an inappropriate relationship and misuse of government property.  A legal review was completed on 18 April 2007 and agreed with the Army Regulation 15-6 investigation recommendation to reduce the applicant to sergeant first class and terminate him from the AGR Program.

	f.  The applicant's separation code on his DD Form 214 is incorrect.

	g.  Paragraphs 6-1a and 6-1b of National Guard Regulation 600-5 apply in this case.

	h.  Paragraph 12-1 of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) also applies in this case.

17.  On 7 July 2010, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 28 July 2010, the applicant's counsel responded.  In summary, he stated:

* the advisory opinion was not supported by law or fact
* the opinion seems to be a compilation of information devoid of adequate justification to disapprove the applicant's request for reinstatement in the AGR Program
* the opinion is extremely confusing and disjointed

18.  Counsel points out:

	a.  The applicant's case has been extremely frustrating because it proceeded all the way through an Article 32 hearing without regard for law, rule, or fact.  This case was driven by a commander who had a vendetta against the applicant before he became the applicant's commander and who pushed this case through all procedural steps until an outside individual, the Article 32 hearing officer, put a halt to this abuse of authority.

	b.  While claims of command bias may sound suspect at first, one needs only to look to the original allegation that started and drove this whole case to know there was palpable command bias and abuse.  The allegation that the applicant fired SPC S____ from her recruiting position in retaliation for having filed a complaint against members of the applicant's recruiting team made it through a formal Army Regulation 15-6 investigation, an Army Regulation 15-6 legal review, a prosecution legal review in anticipation of court-martial charges, the actual court-martial referral process, and to a formal Article 32 hearing before the prosecutor was shamed into agreeing to drop the allegation during his rebuttal closing argument during the Article 32 hearing.

	c.  The prosecutor committed to dropping this primary allegation because the following was exposed during the Article 32 hearing:  (1) the commander and one of the Army Regulation 15-6 IO's held a meeting with the applicant's recruiting team in which they were promised their own transgressions would be ignored if they produced "dirt" against the applicant; (2) the witnesses testified that the applicant warned all team members that SPC S____ was not to be retaliated against or treated badly subsequent to the filing of her complaint; and (3) SPC S____ herself testified that she was not fired, she voluntarily resigned her position because a master sergeant in another unit had advised her she would have to resign from recruiting in order to go on the special duty assignment for President Ford's funeral.

	d.  In evaluating this case and the applicant's ABCMR appeal, it is important to note that despite the various allegations raised and investigated and the various investigations that took place, the only alleged misconduct the government thought could be supported and used to take adverse action against the applicant is what ended up on the court-martial charge sheet and was presented during the Article 32 hearing.  Those allegations were thoroughly discredited during the Article 32 hearing, leading to the allegations and case being dropped and the entire matter being closed.  The government couldn't even meet the low probable cause standard.  This mirrors another AGR case cited in the applicant's original ABCMR filing where the Soldier was removed from the AGR Program despite the outcome of the formal board hearing because "they could."

	e.  The applicant had to be removed from the AGR Program for cause, but no cause existed for his separation because the allegations were discredited and dropped.

	f.  In paragraph 5 of the opinion, NGB admits the reasons for separation from the AGR Program were the Army Regulation 15-6 investigations, but these investigations and the allegations that arose from them were completely discredited.

	g.  In paragraph 9, NGB admits not only that the separation code for misconduct was erroneous, but that the case didn't fall under any of the misconduct separation codes.  That acknowledges that they could not substantiate any misconduct.  Instead, NGB claims the separation code should have been for substandard duty performance.  This is absurd because the applicant's duty performance was exceptional and included the recognitions and awards previously described in his application.

	h.  It is nonsensical that after admitting that no misconduct code would apply to the applicant's AGR separation, NGB, in paragraph 10, then recites how a Soldier can be discharged for misconduct.  NGB doesn't even state that misconduct was committed/substantiated or that the separation was indeed for misconduct, it just randomly cites a regulation without making an argument applying that provision of the regulation.

	i.  When evaluating the "for cause" AGR separation standard and trying to understand NGB's position that a misconduct code for separation would be erroneous, one must recognize that the allegations and case against the applicant were completely dropped.  In other words, he didn't receive any adverse disciplinary action and no adverse disciplinary action could be justified because the allegations themselves couldn't be justified.  So, how can the AGR separation be justified?  It cannot be.

	j.  NGB also describes in paragraph 5 that after the case against the applicant was dropped he was transferred to a chemical company to be the first sergeant.  What NGB fails to acknowledge is that this is a traditional drill position in which the applicant only serves one weekend a month.  His AGR position was not only a full-time position for purposes of income, but it was significant in amassing points toward retirement.  So, the "weekend warrior" position the applicant now holds is not comparable to the AGR position he was unjustly removed from.

	k.  In conclusion, counsel states that in many ways the ABCMR is now serving in a similar position as the Article 32 hearing officer – an outside authority assessing NGB's assertion that it can do whatever it wants.  It is counsel's position that NGB can't just do whatever it wants.  It has to follow the rules, even if that means it doesn't get what it wants.  The applicant's separation from the AGR Program was both erroneous and unjust, it was not "for cause," and the applicant should be reinstated into the AGR Program and reimbursed for the period of time he has been unjustly removed from it.

19.  Paragraph 6-1a of National Guard Regulation 600-5 states Adjutants General will be the final separation authority for AGR Soldiers.  Retention will not be directed when separation is mandatory under this or other Army regulations.  Paragraph 6-5 states AGR Soldiers will be involuntarily separated for cause from Full-Time National Guard Duty in accordance with the procedures of this paragraph.  Adjutants General will review all recommendations for separation and will make the final determination.  Paragraph 6-5a(1) states that 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.  Paragraph 6-5a(2) states that when deciding whether to initiate procedures for involuntary separation, the following factors may be considered:  (1) the seriousness of the events or conditions, (2) the likelihood that the events or conditions will continue or recur, (3) whether the actions of the member resulted or are likely to result in an adverse impact on accomplishment or unit mission, (4) the member's ability to perform full-time support duties, (5) the member's potential for further service, (6) the member's military record, or (7) the possibility of reassigning the member.  Paragraph 6-5c(4) states substandard duty performance is a reason for involuntary separation.

20.  Paragraph 2-2 of Army Regulation 135-178 states that as a general matter, reasonable efforts at rehabilitation should be made prior to initiation of separation proceedings.  Counseling and rehabilitative efforts are a prerequisite to initiation of separation proceedings only insofar as expressly set forth under the specific requirements for the separation.  Paragraph 12-1 of Army Regulation 135-178 states that a Soldier may be discharged for misconduct when it is determined under the guidance set forth in chapter 2, section 1, that the Soldier is unqualified for further military service by reason of one or more circumstances, such as minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, or civil conviction.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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.  The evidence of record shows three Army Regulation 15-6 investigations were conducted in 2007 and the IOs found evidence that the applicant (1) terminated a Soldier from Full-Time National Guard Duty in retribution for an IG complaint that she filed against other recruiters on the applicant's team, (2) he had an inappropriate relationship with one of his recruiter's enlistees, (3) he misused government property to support this relationship as well as multiple other relationships, (4) he made false official statements as to his marital status, (5) he destroyed government property to hinder the Army Regulation 15-6 investigation, and (6) he inappropriately manipulated enlistments between his recruiters and several recruiters benefited monetarily from this manipulation to the detriment of others.

2.  As a result of the findings of the three Army Regulation 15-6 investigations, a recommendation that the applicant's participation in the AGR Program be terminated was initiated on 16 May 2007.  He was released from active duty and terminated from the AGR Program on 12 December 2007.

3.  After the applicant's separation from the AGR Program in 2007, charges were preferred against him for three of the above-mentioned offenses (numbers 1, 2, and 3).  The three charges were dismissed after the Article 32 hearing because the IO determined that probable cause for the charges was not established.

4.  Subsequently, the Michigan TAG denied the applicant's appeal of his involuntary separation from the AGR.

5.  The applicant contends he was involuntarily separated from the MIARNG AGR Program based on allegations that were false and proven to be so at the Article 32 hearing.  He also contends the Michigan TAG refused to overturn his separation after all allegations were dismissed and the case was closed.

6.  Counsel contends the applicant's separation from the AGR Program was both erroneous and unjust and it was not "for cause."

7.  However, one Army Regulation 15-6 investigation found he manipulated enlistments between his recruiters and several recruiters benefited monetarily from this manipulation to the detriment of others (number 6 listed above).  This was not addressed (and thus not dismissed) after the Article 32 investigation.  In addition, offenses numbers 4 and 5 were not addressed (and thus not dismissed) after the Article 31 investigation.  Contrary to counsel's assertion in the rebuttal to the advisory opinion, there is no evidence that these allegations and the Army Regulation 15-6 findings were discredited.  Therefore, there is insufficient evidence to show the applicant was unjustly removed from the AGR Program.

8.  The decision to remove the applicant from the AGR program (full time National Guard duty) was made by the MIARNG Adjutant General.  Hence, this was a State Guard action.  The ABCMR has no authority to order a State Adjutant General to take any action when the matter is one for State Guard officials.  The ABCMR may, when appropriate, recommend corrective action by State Guard officials.  However, based on the reasoning above the ABCMR elects not to make such a recommendation

9.  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 

________  ________  ________  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 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)                                         AR20100012075



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ABCMR Record of Proceedings (cont)                                         AR20100012075



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