BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100012394 


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 correction of his records to show he is retirement eligible with 19 years, 3 months, and 15 days of service.  He also requests that his discharge be upgraded from under honorable conditions (general) to honorable.

2.  The applicant states he was convicted by a special court-martial in October 1985 for missing annual training and some drill periods, due to medical reasons.  He states he does not believe his special court-martial or discharge was proper and he appealed to the Kentucky Adjutant General (AG) who agrees that his discharge was inappropriate.  He states that since the AG cannot, due to age and health, restore him to an active status to complete 20 years, he does not have the authority to grant retirement eligibility.

3.  The applicant provides through his counsel:

* a self-authored memorandum for record, dated 1 April 2010
* a letter from the Army Review Boards Agency (ARBA) Chief, Case Management Division, dated 4 March 2010
* a letter from the Kentucky Army National Guard (KYARNG), dated 29 March 2010
* a letter from the KYARNG, dated 28 January 2010
* a letter from the KYARNG, dated 29 January 2010
* a letter from the KYARNG, dated 28 February 1986


* a letter from his attorney, dated 7 October 1985
* National Guard Bureau (NGB) Form 22 (National Guard Bureau Report of Separation and Record of Service), dated 12 August 1986
* NGB Form 22A (National Guard Bureau Correction to NGB Form 22)
* DD Form 108 (Application for Retired Pay Benefits) dated 16 October 2008
* NGB Form 23 (Army National Guard Retired Credit Record)
* Report of Result of Trial
* Disposition Form, dated 11 September 1986
* KYARNG Orders 155-15, dated 12 August 1986
* questions from his defense counsel during his court-martial
* DA Forms 2166-6 (Enlisted Evaluation Reports)
* DD Form 2656 (Data for Payment of Retired Personnel)
* KYARNG letter dated 2 April 2010
* KYARNG letter dated 29 March 2010

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted a retirement from the KYARNG.

2.  Counsel states the applicant had more than 18 years of service and was not given the opportunity to adequately consult with counsel to make his case in the administrative discharge process.  Counsel states the KYARNG staff failed to comply with the regulation separating Soldiers with more than 18 years of service and there is no indication that the decision to separate the applicant was forwarded to the appropriate office as required by regulation.  Counsel states that the issues raised on the applicant's DD Form 149 amply advances his contentions and substantially reflect the probative facts needed for equitable review.

3.  Counsel provides:

* the applicant’s Record of Discharge from the U.S. Naval Reserve (Inactive)
* the applicant’s DD Form 214N (Armed Forces of the United States Report of Transfer or Discharge)
* the applicant’s Enlisted Performance Record
* the applicant’s Record of Naval Reserve Service
* duplicate copies of documents submitted by the applicant


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.  With prior service in the U.S. Naval Reserve, the applicant enlisted in the KYARNG on 18 February 1977, in pay grade E-5.  He remained a member of the KYARNG through four continuous extensions.  His final extension resulted in an expiration term of service date of 17 February 1986.

3.  On 15 September 1984, the applicant signed an ARNG Participation Requirement Certificate acknowledging he had been counseled relative to his Reserve obligation and responsibilities.  He acknowledged he understood that if he was not excused from scheduled training periods by proper authority, he would be considered absent without leave (AWOL) and charged with an unexcused absence.  He acknowledged he understood that if he was charged with nine or more unexcused absences within a 1-year period, he would be declared an unsatisfactory participant and would be considered for separation from the ARNG and transferred to the Individual Ready Reserve (IRR) for the remainder of his service obligation.

4.  The applicant was convicted by a special court-martial on 19 October 1985 of missing movement on 12 July 1985 and of being AWOL from 12 July 1985 until 28 July 1985.  According to his records, he incurred his 9th unexcused absence on 20 July 1985.

5.  Orders 39–1 were published by the KYARNG on 21 October 1985, reducing the applicant from pay grade E-5 to pay grade E-2, effective 19 October 1985, due to misconduct.  

6.  On 10 December 1985, the applicant’s commanding officer submitted an Application for Separation and Board Action, based on unsatisfactory participation.  The board recommended approval of the application.  The 

applicant’s commander submitted the board’s recommendation to the AG Office requesting that the applicant be discharged from the KYARNG and transferred to the IRR, due to unsatisfactory participation.  

7.  On 28 February 1986, the KYARNG Staff Judge Advocate (SJA) notified the Director of Military Personnel that he had been requested by the Governor’s office to review the circumstances and case files pertaining to the applicant.  The SJA stated that upon his review, he discovered several serious questions concerning the legality of the case.  He requested the applicant’s case be withdrawn from the discharge board and reviewed before being sent to the next discharge board.  He recommended that, upon review, the case be returned without action or in the alternative, be disapproved and returned to the applicant’s commanding officer.

8.  The Director of Military Personnel returned the applicant’s case, without action, to his commanding officer on 13 March 1986.  He stated the administrative procedures outlined in KYARNG Regulation 135-91 had not been met and that once the administrative procedures had been met, the request could be resubmitted.

9.  On 1 April 1986, the applicant's unit commander attempted to notify him of his 9th unexcused absence; however, the notice was returned as undeliverable.  The notice was to inform him that he had been declared an unsatisfactory participant and would be discharged from the KYARNG and transferred to the IRR.

10.  On 18 April 1986, the applicant’s commanding officer submitted another Application for Separation and Board Action.  The board reviewed the application and recommended approval.

11.  On 30 June 1986, the applicant was sent a letter of instruction due to his unexcused absence from annual training from 12 July 1985 through 28 July 1985.  The applicant was told that absences from annual training may be excused only for reasons of sickness, injury, emergency or other circumstances beyond his control.  He was told that if his absence was for one of the stated reasons, he should furnish the unit an appropriate affidavit or certification by a doctor, medical officer, or the person(s) having specific knowledge of the emergency of the circumstances.  The applicant was told that his absence could not be excused unless his request with supporting documents was received within 15 days of the date he received the letter of instruction.  

12.  On 12 August 1986, Boone National Guard Center Orders 155-15 were published by the KYARNG discharging the applicant from the ARNG and assigning him to the IRR.  The NGB Form 22 he received shows he was separated under the provisions of National Guard Regulation 600-200, (Enlisted Personnel Management), paragraph 7-10r and issued a General Discharge Certificate.

13.  On 11 February 1987, U.S. Army Reserve Personnel Center Orders 
D-02-012222 were published discharging the applicant from the IRR under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), effective 17 February 1987.  He received an Honorable Discharge Certificate.

14.  The applicant submits a letter dated 29 March 2010 from the KYARNG AG stating that he concurs with the investigative findings of his staff that his discharge was inappropriately handled.  He states that the investigation, conducted by their J1 Personnel Directorate, SJA, Administrative Service Division/Legislative Liaison and State Attorney, concludes that he was not provided a fair hearing on his discharge.  The KYARNG AG states the proper procedures were not followed in processing the applicant's discharge and he was not briefed on the implications of his discharge.  He states that he concurs with the applicant's request for retirement eligibility as redress for the improper discharge.  He states he has no viable option for redress of his situation as the applicant is too old at this time, nor does he meet the physical requirements for reinstatement into the ARNG to satisfy the remaining 7 months and 15 days required for retirement eligibility.  He referred the applicant to this Board for consideration in granting retirement eligibility.

15.  The applicant submits a letter dated 28 January 2010, from the KYARNG SJA who states that Soldiers who attain 18 years of creditable military service may not be processed for administrative separation with approval of the Secretary Army and the applicant's separation was not.  He states that had the applicant's discharge been submitted to the Secretary of the Army, it is unlikely that the discharge would have been approved, given his service record, time in service, and the relatively minor nature of the offenses for which he was convicted.  The KYARNG SJA states that in 1986 the SJA for the KYARNG identified problems with the applicant's discharge action and recommended that the action be withdrawn or disapproved.  He states that in spite of and contrary to his legal advice, the applicant's command proceeded to process his discharge, separating him within 9 months of service which would have vested his retirement benefits.  The SJA urges this Board to accept the applicant's request for review and relief.

16.  The applicant also submits a letter dated 29 January 2010 from the KYARNG Director of Administrative Service who states he conducted a review of the applicant's records and following discussions with the SJA and Personnel Directorate (J1), along with the state attorney and former SJA, he believes the applicant was summarily discharged from the KYARNG without appropriate due process.  He states that his review determined that the applicant was not given a fair hearing on the discharge process, nor was he informed of the implications of his discharge.  He states that proper procedures were not followed with a Soldier who has 19 years of qualifying service towards retirement.  He states that all of the applicant's evaluations are satisfactory and that the applicant's early dismissal prevented him from qualifying for benefits. 

17.  The ARNG Retirement Credit Record submitted by the applicant, Record of Naval Reserve Service submitted by his counsel,  and an ARPC Form 249E (Chronological Statement of Retirement Points) prepared by the U.S. Army Reserve Personnel Command shows he had 18 years of qualifying service for retired pay purposes.  He completed his 18th qualifying year in retirement year ending (RYE) 27 April 1985. 

18.  National Guard Regulation 600-200, chapter 7, then in effect, provides guidance and reasons for discharging a Soldier from both the State ARNG and the Reserve of the Army.  In states that the separation of enlisted personnel from the ARNG is accomplished through discharge by appropriate State authorities.  When Soldiers are discharged from the State ARNG (unless previously discharged by the Active Army from the Reserve of the Army status), they automatically become members of the Army Reserve if they have remaining contract time.  The Chief, NGB is the approval authority for the involuntary discharge of ARNG Soldiers who have completed 18 but less than 20 years of service qualifying for retired pay at age 60.  

19.  Army 135-178, paragraph 2-9a, provides that an honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 2-9a(1) provides that an honorable characterization may only be awarded a Soldier upon completion of his or her service obligation, or where required under specific reasons for separation, unless an uncharacterized description is warranted.

DISCUSSION AND CONCLUSIONS:

1.  The contentions made by the applicant and his counsel have been noted.  The supporting documents have been considered. 

2.  The applicant was discharged from the KYARNG and transferred to the IRR due to unsatisfactory participation on 12 August 1986.  At the time of his discharge from the KYARNG he received a General Discharge Certificate as his service was not completely honorable.

3.  He was discharged from the KYARNG under the provisions of Army Regulation 600-200, paragraph 7-10r.  The Chief, NGB was the approval authority for the involuntary discharge of ARNG Soldiers who completed 18 but less than 20 years of qualifying service for retired pay at age 60.  

4.  The applicant had 18 years of qualifying service for retired pay purposes at the time of his discharge from the KYARNG.  There is no evidence in the available records showing that the Chief, NGB approved the recommendation for his discharge from the ARNG.  Therefore, his discharge from the ARNG was not accomplished in accordance with the applicable regulation.

5.  The applicant's records show that when he was discharged from the IRR he was issued an Honorable Discharge Certificate.  His records do not support his contention that he had over 19 years of qualifying service for retired pay purposes.  However, based on his erroneous discharge from the KYARNG, his records should be corrected to show he earned 20 years of qualifying service for retired pay age 60, that he was honorably discharged from the KYARNG and transferred to the Retired Reserve, and that he applied for retired pay in a timely manner.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

7.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

___x__  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  voiding his 12 August 1986 discharge from the KYARNG.

	b.  amending his NGB Form 22 to show he was retained in the KYARNG until 27 April 1987 and earned 50 retirement points (15 membership and 35 inactive duty points) during RYEs 27 April 1986 and 27 April 1987.

	c.  showing he was honorably discharged and transferred to the Retired Reserve effective 28 April 1987.

	d.  showing he was eligible and applied for retired pay in a timely manner to be effective 1 December 2008.

	e.  awarding him all back pay and allowance and back retired pay due as a result of these corrections.



      ___________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)                                         AR20100012394





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ABCMR Record of Proceedings (cont)                                         AR20100012394



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