IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100019380 


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, through counsel, reconsideration of her request to void her involuntary separation from the United States Army Reserve (USAR) and transfer her to the USAR Control Group (Reinforcement) effective 1 October 2006.  

2.  The applicant defers her comments to counsel.

3.  The applicant provides no additional documents with her request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board reconsider the applicant’s request to void her involuntary separation from the USAR and to transfer her to the USAR Control Group (Reinforcement) effective 1 October 2006.

2.  Counsel states that the Board’s reliance in the presumption of regularity is invalid when the entire record is void of any facts and circumstances concerning the events that led to her discharge from the Army Reserve.  He goes on to state the very fact that no evidence exists to sustain the issuance of a discharge under other than honorable conditions given the applicant’s years of excellent service refutes any alleged presumption of regularity.  He further states that the only evidence the Board relied on was the Army Discharge Review Board’s decision, dated 30 September 2008, which was an administrative decision.  He also states 


despite the applicant’s claim that she was never notified of changes and deficiencies and given options, the Board improperly relied on the presumption of regularity, when the applicant’s statement in itself was sufficient to overcome the presumption of regularity.  He continues by stating that it is reasonable to presume that because there is no record anywhere that any board hearing ever took places that it was indeed a Reserve "SNAFU."  He concludes by stating that he served as a Judge Advocate General (JAG) officer for 24 years and can certainly attest that errors occur and in this case the applicant’s statement and the absence of records in the official files are sufficient to prove the injustice.  It is clear in evidentiary law that a search of records that are void of documents or notations is enough proof that such records do not exist.

3.  Counsel provides a letter of attorney representation signed by the applicant.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090009692, on 10 December 2009.

2.  The applicant now provides new arguments in support of her previous request and she raises new issues that require reconsideration.  

3.  In the processing of this case a staff member of the Board contacted Army officials in Germany to ascertain if a copy of the board proceedings pertaining to the applicant were present and available to this Board.  Officials there obtained copies from the office of the Staff Judge Advocate of the 7th Army Reserve Command (ARCOM) which show the 1st Armored Division remained non-committal as to whether the applicant should be tried by court-martial for almost a year when the Commanding General, 7th ARCOM decided to dispose of the matter through a Show-Cause Board.

4.  On 3 December 2005, a Show-Cause Board was convened under the provisions of Army Regulation 15-6 to determine if the applicant had committed multiple acts of misconduct.

5.  The proceedings of the board show that the applicant was personally notified of the board by a major who put the notification in her hands but she refused to sign for the notification.



6.  A lieutenant colonel testified that his commander directed him to deliver the notification to the applicant and to have her sign for the notification.  He testified that he went to her place of employment in civilian clothes and presented her the notification packet and when she opened it and realized what it was, she put it back in the envelope and returned to work.  He stated that she refused to sign for the packet.

7.  The senior defense counsel at the Trial Defense Service submitted a memorandum for record in which she stated that she was appointed as the applicant’s counsel in September 2005 and when she contacted the applicant and explained that she was appointed to represent her at the Administrative Separation Board, the applicant told her twice that she was not interested in her representation and did not require her service.  Accordingly, she accepted the applicant’s wishes and did not represent her.     

8.  After hearing all of the testimony and reviewing the available evidence, the board found that:

* The applicant mismanaged her personal affairs to the discredit of the service within the meaning of Army Regulation 135-178 by knowingly continuing to receive military pay to which she was not entitled
* She did not out-process finance as ordered at the end of her mobilization in September 2003 
* She failed to report continued receipt of active duty pay from September 2003 through May 2004 after demobilization
* She improperly stated that this pay was incapacitation pay
* She intentionally neglected or failed to perform assigned duties by missing unit training assemblies (UTAs) every month from June 2004 to June 2005 and annual training in February and March 2005
* She failed to report for mandatory annual training on 11 September 2004 and again from 26 February through 11 March 2005
* She intentionally neglected or failed to reply to official correspondence by refusing to acknowledge letters from her unit and by hanging up the telephone on an officer of the unit who called to ascertain why she was not present for training
* The applicant repeatedly refused to accept personally delivered notifications as stated by witnesses
* The applicant repeatedly refused to accept delivery of and to sign for mail as evidenced by witness statements


* The applicant’s husband, an active duty officer, connived with her in refusing delivery of official mail as evidenced by written statements 
* The applicant willfully changed her mailing address from Germany to Texas with the intent to deceive and to frustrate delivery of her mail while living in Germany


9.  The board also noted the applicant willfully refused to accept personal service of the memorandum initiating elimination proceedings and the notification of board proceedings.  She also refused to consult with an attorney despite having been given an order to do so and she failed to appear at the proceedings of the board.  The board unanimously agreed that the applicant should be discharged from the USAR under other than honorable conditions.

10.  On 8 September 2006, the appropriate authority (a major general) approved the findings and recommendation of the board and directed that the applicant be discharged under other than honorable conditions.  Accordingly, she was discharged on 1 October 2006.

11.  Army Regulation 135-175 sets forth the basic authority for the separation of officers from the USAR, except for officers serving on active duty or active duty training exceeding 90 days.  Chapter 2 of this regulation provides the basis for involuntary separations of USAR officers.  Specific categories include substandard performance of duty, moral or professional dereliction, in the interest of national security, as a result of trial by court martial, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, homosexual conduct, convictions by civil authorities and desertion or absence without proper authority from unit training.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate.  However, a general under honorable conditions or an honorable discharge may be granted.  The separation of an officer under the provision of this chapter will be accomplished only on the approved recommendations of a board of officers convened by competent authority.

12.  Army Regulation 15-185 provides Department of the Army policy, criteria and administrative instructions regarding an applicant’s request for correction of a military record.  It provides, in pertinent part, that the ABCMR is not an investigative agency and that the burden of proof in determining that an error or injustice exists rest with the applicant. 



DISCUSSION AND CONCLUSIONS:

1.  While the applicable directive governing the operation of the Board provides that the Board is not an investigative agency and that the burden of proof rests with the applicant, it is apparent that neither the applicant nor her counsel made any attempt to uncover the truth in this matter.

2.  For that reason, the staff of the Board expended the effort necessary to get to the truth in the matter of the applicant’s discharge and found that the applicant’s contentions are completely without merit.

3.  The evidence of record shows the applicant’s administrative discharge was accomplished in accordance with the applicable regulations with no indications of any violations of any of the applicant’s rights.

4.  The applicant was afforded every opportunity to participate in the proceedings, yet she chose to ignore the attempts by the chain of command to involve her in the proceedings and thus the proceedings were conducted in her absence, which was a decision she made when she refused to acknowledge the attempts to allow her to participate.

5.  Based on a review of the proceedings that were obtained from her last command, it appears that the applicant’s discharge under other than honorable condition properly characterizes her multiple acts of misconduct and overall service.

6.  Accordingly, the counsel’s argument that the Board’s acceptance of the presumption of regularity was improper in this case is not accepted.  Neither the applicant or her counsel have submitted any evidence to show that the applicant was denied due process or that she was unjustly discharged.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090009692, dated 10 December 2009.



      _______ _   __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)                                         AR20100019380



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ABCMR Record of Proceedings (cont)                                         AR20100019380



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