IN THE CASE OF:	   

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20110016097 


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 reinstatement into the Arizona Army National Guard (AZARNG).

2.  The applicant states:

* She was involuntarily discharged from the AZARNG without having her case heard by an administrative separation board and under an incorrect separation authority
* She was not advised of her rights nor afforded the opportunity to consult with an attorney
* She was previously diagnosed with post-traumatic stress disorder (PTSD) in 2009 brought about by her deployment between 2007 and 2008
* She was again diagnosed with PTSD in 2010 but this time the military official added a major depressive disorder and recommended separation
* She was then told she would be discharged from the Active Guard Reserve (AGR) program and the ARNG
* She had completed 19 years, 2 months, and 27 days of creditable active service
* She was discharged medically from the ARNG and issued a 15-year letter 
* She was left with no benefits, insurance, or health benefits

3.  The applicant provides:

* Memorandum of separation from the AZARNG Deputy Chief of Staff, G-1
* Multiple Command Referral for Mental Health Evaluation memoranda
* DA Form 3822-R (Report of Mental Status Evaluation) 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 10 October 2007 and 2 May 2010
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Notification of Eligibility for Retired Pay at Age 60
* NGB Form 23B (ARNG Retirement Points History Statement) 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was born on 8 December 1968.

2.  She enlisted in the Army National Guard on 18 January 1990 and she held military occupational specialties 76P (Materiel Control and Accounting Specialist) and 92Y (Unit Supply Specialist).  

3.  She served through multiple extensions or reenlistments in the ARNG and she attained the rank/grade of staff sergeant (SSG)/E-6.

4. She entered active duty on 11 August 2003 and she was honorably released from active duty to the control of her state on 31 July 2006.  

5.  She again entered active duty on 1 August 2006 and served in support of Operation Iraqi Freedom from 26 October 2006 to 21 October 2007.  She was honorably released from active duty to the control of her state on 30 October 2007. 

6.  On 31 October 2007, she entered active duty in the AGR program under Title 32, U.S. Code, section 507 (Full Time National Guard Duty (FTNGD)).  She was assigned to the 860th Military Police Company, AZARNG, Phoenix, AZ.

7.  On 27 January 2008, she executed a 1-year extension of her original enlistment contract.  Her expiration of term of service (ETS) was established as 27 January 2009.

8.  On 9 March 2009, after submitting a waiver to extend her enlistment, the Enlisted Personnel Manager, AZARNG authorized a 3-month extension waiver.  He indicated that her ongoing medical status was under review and precluded her from taking the Army Physical Fitness Test.

9.  Accordingly, on 26 March 2009, she executed a 3-month extension of her original enlistment contract.  Her ETS was established as 26 June 2009.
10.  On 26 June 2009, she was authorized a waiver and executed a 6-month extension of her enlistment.  Her new ETS was established as 26 December 2009.

11.  On 17 September 2009, by memorandum, the applicant's detachment commander referred the applicant for a mental status evaluation.  He stated he had advised her of her rights and the reasons for the referral.  He stated she had been absent from duty complaining of appendix, heart murmur, depression, and dehydration but was released by medical providers within 2 hours.  On the average, she had called on and off duty twice a month or her doctors gave her quarters.  She had demonstrated an inability to meet deadlines or suspense dates.  She had kept to herself and was for the most part not talkative.  She tended not to look at people and she was often defensive.  

12.  On 22 September 2009, she acknowledged receipt of the referral memorandum and indicated she fully understood her rights. 

13.  On 30 September 2009, she underwent a mental status evaluation.  The psychologist indicated the mental status evaluation yielded a diagnosis of PTSD. Her medical issues and employment difficulties appeared to be directly related to her psychiatric diagnosis.  She (the applicant) reported that she had stopped all psychiatric treatment (therapy and medication) several months earlier and had since experienced an exacerbation of PTSD symptoms.  The psychologist indicated the applicant should establish treatment.

14.  On 9 December 2009, she submitted a DA Form 4187 (Personnel Action) wherein she requested to be retained beyond her ETS because she was pending a fit for duty board.  She was authorized retention in the AZARNG through 26 March 2010.

15.  On 3 February 2010, again, by memorandum, the applicant's detachment commander referred the applicant to a mental status evaluation.  He stated that he had advised her of her rights and the reasons for the referral.  She acknowledged receipt of the referral memorandum and indicated she fully understood her rights. 

16.  On 9 February 2010, she underwent another mental status evaluation.  The psychologist indicated the mental status evaluation yielded a diagnosis of PTSD and a major depressive disorder, single episode, severe.  The psychologist indicates that the applicant was previously recommended to establish treatment but did not do so until 28 January 2010.  Her symptoms had since increased in intensity and she was experiencing suicidal ideation, although she denied any intent to harm herself.  She met the criteria for separation under paragraph 5-17 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separation).  She was again recommended to receive intensive treatment to facilitate stabilization.

17.  On 2 April 2010, by memorandum, the AZARNG Deputy Chief of Staff, G-1, notified the applicant that based on the results of the mental status evaluations on 30 September 2009 and 8 February 2010, she was being administratively separated in accordance with "chapter 5-17" (paragraph 5-13) of Army Regulation 635-200.  In other words, the psychiatric condition did not warrant her physical disability separation.  Her separation date was established as 2 May 2010.  The G-1 stated:

* The decision to separate her was made based on her mental status evaluation and the Army psychiatrist's strong recommendation 
* Her medical documents from the 3 March 2010 behavioral health incident were also reviewed
* The psychologist determined that an expeditious administrative separation was still the appropriate recommendation and that this is not a line of duty condition
* She would also be released from the AZARNG 

18.  On 7 April 2010, the AZARNG issued her a Notification of Eligibility for Retired pay at Age 60 (15-year letter) and on 8 April 2010, the AZARNG published Orders 098-602 reassigning her to the Transition Point, Joint Force Headquarters - AZ and AGR Management Branch, Phoenix, AZ, effective 2 May 2010 for outprocessing and subsequent reassignment to the Retired Reserve. 

19.  She was honorably discharged from active duty on 2 May 2010 under the provisions of chapter 5-13 of Army Regulation 635-200 by reason of a personality disorder.  Her DD Form 214 shows she completed 2 years, 6 months, and 2 days of active service during this period and she had 4 years, 9 months, and 15 days of prior active service.  She received $13,938.00 in separation pay based on her active duty from August 2003 to May 2010.  The following codes are assigned:

* Item 9 (Command to Which Transferred) - USAR Control Group (Retired) 1 Reserve Way, St. Louis, MO 63132
* Item 25 (Separation Authority) - Army Regulation 635-200, paragraph 5-13
* Item 26 (Separation Code) - "JFX"
* Item 28 (Narrative Reason for Separation) - Personality Disorder 

20.  She was also discharged from the ARNG on 2 May 2010 in accordance with paragraph 6-35c(6) of National Guard Regulation 635-200 (Enlisted Personnel Management) by reason of having other designated physical or mental conditions.   Her NGB Form 23B shows she had completed 19 years, 2 months, and 27 days of qualifying years of service for non-regular retirement.   A breakdown of this form is as follows:

Begin
Date
End
Date
IDT
Membership
Active Duty
Total Points
Credit Svc for Retired Pay
19901219
19910117
4
15

264
01/00/00
19910118
19920117
46
15

76
01/00/00














20071031
20080130
0
15
92

01/00/00
20080131
20090130
0
15
366
381
01/00/00
20090131
20100130
0
15
365
380
01/00/00
20100131
20100502
0
4
92
96
00/03/02







Total





19/02/27
21.  An advisory opinion was received on 18 October 2012 from the NGB in the processing of this case.  An NGB official recommended/stated: 

* Reinstating the applicant into the AZARNG AGR program to complete Line of Duty (LOD), Physical Evaluation Board (PEB)/Medical Evaluation Board (MEB)
* Reassessment of creditable time served for retirement purposes to determine retirement eligibility
* Deferment of recoupment of separation pay until all board proceedings are complete as the completion of the boards result in involuntary separation

	a.  The advisory official provided a summary and restated the applicant's requests to be reinstated into the AZARNG and into the AGR program and allowed her right to due process.  She was involuntarily separated into the retired reserve with separation pay from the AZARNG for conditions that met the psychiatric criteria for separation in accordance with Army Regulation 635-200, paragraph 5-17 and Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations), paragraph 6-7.  

	b.  The applicant worked as an AGR Soldier who deployed in support of OIF from 1 August 2006  to 30 October 2007.  She was referred to Behavioral Health twice upon her return.  The first referral in September 2009 was for excessive absence at work reportedly due to medical issues.  The resulting diagnosis was chronic PTSD which appeared to have occurred following the deployment.  She was prescribed treatment and delayed seeking the treatment. 

	c.  She was again referred in February 2010 to Behavioral Health.  She received a memo with points of contact for legal counsel, IG, and chaplain services from which it appears she never sought assistance.  As a result of the second referral, she was seen by the same psychologist who diagnosed chronic PTSD and major depressive disorder/single episode, severe.  Her symptoms had increased in intensity and the determination was that she met psychiatric criteria for administrative separation in accordance with Army Regulation 635-200, chapter 5-17 based on the duration and magnitude of her symptoms and the impact on her ability to function effectively in her job.  The psychologist diagnosed her as "not fit for duty" and recommended administrative separation as soon as possible.  The psychologist also recommended that she receive intensive treatment to facilitate stabilization through either an inpatient hospitalization or an intensive outpatient program.  She opted for the outpatient program based on issues within her household.

	d.  According to the enclosed missive from the AZARNG G1, the Deputy G1 and the Human Resources Officer AGR Manager sat down with the applicant and her spouse and explained in depth what benefits would be available to her as a result of the involuntary discharge from the AGR force as well as the AZARNG.  According to the above-named personnel, she and her spouse were made aware of the separation package associated with involuntary separation, and they (the applicant and her spouse – who has since passed) preferred the separation package rather than the board process.  There is neither the required documentation nor counseling to support this, as required per Army Regulation 635-200, paragraph 1-16.  

	e.  The NGB’s Surgeon General’s office response when queried was in part "…all of the documentation states there were behavioral health diagnoses, but there is nothing in the documentation that alludes to whether or not this was an actual LOD or not.  The assumption was, based on the diagnosis, that it would have had to have been considered LOD, which would have definitely warranted a PEB/MEB as opposed to the administrative separation that occurred, but again there is nothing contained in the document to substantiate/validate whether it was or was not in the line of duty."  

	f.  At the time of her involuntary discharge, her Creditable Service for Retired Pay (RPAM) was 19 years, 2 months and 27 days.  Her NGB Form 22 credits her with 20 years, 3 months, and 15 days of total service for retired pay with a terminal date of reserve/military obligation of 30 September 2010.  Per NGR (AR) 600-5 paragraph 6-2, "AGR Soldiers undergoing extensive medical treatment or medical board proceedings for LOD related injuries or diseases will be retained in AGR status until final disposition by medical authorities."  There is no evidence of an LOD or medical board proceedings; however the narrative reason for separation on her DD Form 214 is "Personality Disorder." 

	g.  Army Regulation 635-200, paragraph 5-13 states "the separation authority for Soldiers separated under this paragraph that are, or have been deployed to an area designated as an imminent danger pay area is the General Court Martial Convening Authority (GCMCA).  This authority may not be delegated."  There is no evidence that this occurred in her case. 

	h.  Army Regulation 135-178, section 1-11(a), states in 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.  Cases involving separation at the request of the Soldier need not be referred to HQDA for approval."  Additionally, NGR 600-5, section 6-1(b)(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."

	i.  Army Regulation 635-200, paragraph 1-16, states in part … "Commanders must make maximum use of counseling and rehabilitation before determining that the Soldier has no potential for further useful service and should be separated.  In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings."  Further, referencing Army Regulation 635-200 paragraph 5-13, "Separation authority for Soldiers separated under this paragraph that are, or have been, deployed to an area designated as imminent danger pay area is the General Court Martial Convening Authority.  This authority may not be delegated."  There is no documentary evidence to support that either regulation was followed.

	j.  An enclosed memorandum from the G1, AZARNG received when queried for additional documents or information relayed that the State non-concurs with granting any relief to the applicant.

22.  The applicant was provided with a copy of NGB’s advisory opinion.  She responded by email on 22 October 2012 indicating her concurrence with NGB's advisory opinion recommending relief.  (NGB's advisory opinion indicated that the State did not concur with the recommended action.)

23.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 5-13 at the time stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40, that interfered with assignment to or performance of duty.  The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty.  Commanders would not take action prescribed in this paragraph in lieu of disciplinary action.  The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired.  Separation for personality disorder was not appropriate when separation was warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15 of this regulation; Army Regulation 604-10; or Army Regulation 635-40.

	b.  All Army Activities message 036-2009, subject:  Policy Changes for Separation of Enlisted Soldiers Due to Personality Disorder (Army Regulation 635-200, paragraphs 5-13 and 5-17) referenced Assistant Secretary of the Army (Manpower and Reserve Affairs) memorandum, Subject:  Enlisted Administrative Separations, dated 10 February 2009.  That memorandum stated that, effective immediately, administrative separation under Army Regulation 635-200, paragraph 5-13, was limited to enlisted Soldiers who have less than 24 months of active duty service as of the date separation proceedings are initiated.  Army Regulation 635-200, paragraph 5-17, may now be used to separate enlisted Soldiers because of personality disorder when they have 24 months or more of active duty service.

	c.  Separations on the basis of personality disorder for enlisted Soldiers who have served or are currently serving in imminent danger pay areas must meet the following requirements:  a psychiatrist or PhD-level psychologist must diagnose the personality disorder; the diagnosis must be corroborated by a peer or higher-level mental health professional and endorsed by the Surgeon General of the Army; and such diagnosis must address PTSD or other mental illness co-morbidity, if present.

	d.  For a Soldier who has served or is currently serving in an imminent danger pay area and is within the first 24 months of active duty service, the diagnosis of personality disorder for separation under Army Regulation 635-200, paragraph      5-13, must be corroborated by the medical treatment facility Chief of Behavioral Health (or an equivalent official).  The corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon General.  Medical review of the personality disorder diagnosis will consider whether PTSD, traumatic brain injury (TBI), and/or other co-morbid mental illness may be significant contributing factors to the diagnosis.  A Soldier will not be processed for administrative separation under Army Regulation 635-200, paragraph 5-13, if PTSD, TBI, and/or other co-morbid mental illness are significant factors to a diagnosis of personality disorder but will be evaluated under the physical disability system in accordance with Army Regulation 635-40.

	e.  For a Soldier who has served or is currently serving in an imminent danger pay area and who has 24 months or more of active duty service, the diagnosis of personality disorder for separation under Army Regulation 635-200, paragraph      5-17, must be corroborated by the medical treatment facility Chief of Behavioral Health (or an equivalent official).  The corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon General.  Medical review of the personality disorder diagnosis will consider whether PTSD, TBI, and/or other co-morbid mental illness may be significant contributing factors to the diagnosis.  A Soldier will not be processed for administrative separation under Army Regulation 635-200, paragraph 5-17, if PTSD, TBI, and/or other co-morbid mental illness are significant factors to a diagnosis of personality disorder but will be evaluated under the physical disability system in accordance with Army Regulation 635-40. 

	f.  The separation authority for Soldiers who have served or are currently serving in an imminent danger pay area is the general court-martial convening authority.  This authority may not be delegated.  In all other separations under Army Regulation 635-200, paragraphs 5-13 and 5-17, the separation authority remains the special court-martial convening authority.

	g.  Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty.  Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

24.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code JFX is the correct code for Soldiers separating under paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.  The SPD of "JFV" is the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability.

25.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEBs) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).

26.  Paragraph 3-1 provides that the mere presence of impairment does not, of 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 their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in chapter 3 of Army Regulation 40-501.  These standards include guidelines for applying them to fitness decisions in individual cases.  

27.  Appendix B-3C(1) (Failure to comply with prescribed treatment) of Army Regulation 635-40 states there are many conditions, such as neuropsychiatric disorders, asthma, hypertension, epilepsy, diabetes, certain injuries, which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, or take prescribed medications, or to observe prescribed restrictions on diet, activities, or the use of alcohol, drugs or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction; or the Soldier’s failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.  

28.  NGR 635-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states, of ARNG enlisted personnel.  Chapter 6 prescribes enlisted separations.  

	a.  Paragraph 6-35c(6) provides for separation due to other designated physical or mental conditions.  Administrative separation board procedures per paragraph 6-32 are required.

	b.  Paragraph 6-32 states all involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures.  The notification and administrative board procedures contained in Army Regulation 135-178 will be used as required in this regulation.  All Soldiers with 6 or more years of total military service on the date of initiation of recommendation for separation, or if being considered for separation under other than honorable conditions have the right to an administrative separation board.  The Soldier may waive this right, except as indicated in paragraph 3-15c of Army Regulation 135-178.  Waivers of the board hearings and the right to representation by counsel at board hearings will not be accepted in the cases of Soldiers who have completed 18, but less than 20, years of qualifying service for retired pay. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated from the AZARNG with entitlement to separation pay.  She alleges administrative irregularities and requests reinstatement into the ARNG.  There are three key issues in the applicant's case:  medical issues, administrative irregularities in her release from the AGR program, and questionable discharge from the ARNG.  

2.  With respect to the medical issues:

	a.  Her records contain two command-directed mental status evaluations.  On 18 September 2009, she underwent a mental status evaluation due to frequent work absences for medical complaints that resulted in placing her on quarters.  She had complaints of "appendix, heart murmur, depression, and dehydration."  She was evaluated on 30 September 2009.  The evaluation noted that she was supposed to be receiving treatment for PTSD but that she had stopped the treatment, therapy and medication, several months earlier.  The psychologist recommended resumption of treatment and a reevaluation after 90 days to determine if she was responding appropriately or in need of an MEB.  Her diagnosis was that of chronic PTSD.  There was no diagnosis of a personality disorder or an adjustment disorder.  

	b.  She underwent another mental status evaluation on 2 February 2010.  She was diagnosed with PTSD and a major depressive disorder, single episode, severe.  It was noted that although she was directed to resume treatment for PTSD for a period of 90 days, she did not seek treatment until 28 January 2010.  Additionally, although she was not diagnosed with an adjustment disorder or a personality disorder, the psychologist stated she met the psychiatric criteria for separation under chapter 5-17 of Army Regulation 635-200.  This constitutes a "Condition - Not a Disability" and is a reflection of her non-compliance with medical recommendations.

	c.  Contrary to the NGB's advisory opinion, there were no disabling conditions that warranted her entry into the disability system.  Both PTSD and depression are potentially compensable maladies but referral to an MEB would require an 

inadequate response to treatment resulting in a failure to meet retention standards.  This is not the case here.

	d.  She received several extensions of her active service for the purpose of receiving medical treatment.  She did not comply with the treatment.  She would initiate treatment and then once she received an extension of her active service, she would stop that treatment.  She had conditions that can and do respond to treatment but her non-compliance made it impossible to say she did not meet retention standards.  Since her conditions were considered to be problematic with the performance of her duties, she was recommended for a chapter 5-17 (Condition - Not a Disability). 

	e.  The PTSD and depression were not considered disabilities because they did not fail to respond to treatment (because the applicant refused to comply with treatment).  However, the authority for her separation should have been listed as chapter 5-17 instead of chapter 5-13.  Although her refusal of treatment or her non-compliance with the treatment might have stemmed from an underlying disorder, there is no evidence of record that shows she had a personality disorder.  The two medical status evaluations support this conclusion. 

	f.  On 2 April 2010, her commander notified her of the administrative separation in accordance with chapter 5-17 (erroneously shown as 5-13) of Army Regulation 635-200 due to not meeting psychiatric criteria for a physical disability separation but meeting the criteria for separation for another condition, not a disability .  She was discharged for "Personality Disorder" on 2 May 2010. 

3.  With respect to the administrative irregularities:

	a.  Although she had not completed 19 years of active service as she contends, she had completed 19 years, 2 months, and 27 days of qualifying years of service for non-regular retirement.  As such, she was entitled to an administrative separation board.  She was not given this option. 

	b.  In similar circumstances and the Board granted relief, an applicant would be granted service credit and pay, as a matter of equity, from the date of discharge to the date of expiration of current enlistment commitment.  In the applicant’s case her enlistment commitment had expired and she was serving on monthly or quarterly increments pending finalizing of her case.  As such, she had no enlistment contract or contractual obligations.  

	c.  Furthermore, as established earlier, she should have been discharged for a "Condition – Not a Disability" and as such, her DD Form 214 contains 

administrative errors.  A fundamental part of any discharge proceedings is proper notification to inform the Soldier of his or her rights.  Here, the AZARNG relied on the fact that she had the opportunity to consult with counsel when undergoing command-directed mental health evaluation and on discussion she had concerning her separation with representative of the AZARNG.  

	d.  Those opportunities to consult with counsel coupled with the undocumented discussions with the state ARNG representative do not satisfy the due process requirements set in Army Regulation 635-200.  Accordingly, her discharge was improper and since her discharge was improper, neither paragraph 5-13 nor paragraph 5-17 apply as the authority for separation.  The most appropriate reason for separation is Secretariat Authority under paragraph 5-3 of Army Regulation 635-200 with corresponding separation code. 

4.  With respect to the separation from the ARNG:  

	a.  Her NGB Form 22 shows she was discharged from the ARNG on 2 May 2010 by reason of other designated physical or mental conditions.  However, at the time of discharge from the ARNG, she had completed more than 19 but less than 20 qualifying years of service.  Since the reason for her discharge was a medical reason, she was issued a 15-year letter. 

	b.  However, since she was in a sanctuary status (18 to 20 qualifying years), she should not have been discharged by the State.  The Chief, NGB, was the authority to discharge her.  This appears to be another administrative error that possibly denied her the opportunity to complete 20 qualifying years of service for non-regular retirement.  

	c.  Therefore, as a matter of equity, her discharge date from the ARNG should be amended to show she was honorably discharged on 30 January 2011 instead of 2 May 2010) to show she completed a full retirement year.  Additionally, although she earned 96 retirement points between 31 January 2010 (the date her retirement year began) and 2 May 2010 (the date she was discharged), this period did not count as a full qualifying year toward non-regular retirement.  With an adjusted separation date of 30 January 2011, the RYE becomes a qualifying year.  Furthermore, her NGB Form 23B should be adjusted to show completion of 20 qualifying years toward non-regular retirement and the issuance of a       20-year letter vice her already-issued 15-year letter. 

5.  No other relief, including reinstatement in the ARNG, is warranted. 


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 all Department of the Army records of the individual concerned be corrected by:

	a.  Correcting her DD Form 214 ending on 2 May 2010, as follows: 

* deleting from item 10 the entry USAR Control Group (Retired) 1 Reserve Way, St. Louis, MO 63132 and adding the entry 198th Regional Support Command, AZARNG
* deleting from item 25 of her DD Form 214 the entry "AR 635-200, Paragraph 5-13" and adding the entry "AR 635-200, paragraph 5-3"
* deleting from item 26 of her DD Form 214 the entry "JFX" and adding the entry "JFF"
* deleting from item 28 of her DD Form 214 the entry "Personality Disorder" and adding the entry "Secretarial Authority"

	b.  amending Orders 098-602, issued by the AZARNG on 8 April 2010 to show she was transferred to the Retired Reserve on 30 January 2011 instead of 2 May 2010

	c.  correcting her NGB Form 22, ending on 2 May 2010, as follows by showing in item 8b (Effective Date) she was honorably discharged on 30 January 2011 and recomputation of item 10 (Record of Service).

	d.  issuing her an Honorable Discharge Certificate effective 30 January 2011 

	e.  Correcting her NGB Form 23B (ARNG Retirement Points History Statement) to show:

* the end date of her last qualifying year for non-regular retirement as 30 January 2011 vice 2 May 2010
* showing completion of 20 qualifying years of service toward non-regular retirement 
* voiding her 15-year letter and issuing her a 20-year letter 

2.  The Board further determined that the evidence presented is 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 reinstatement in the AZARNG. 




      _______ _   __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)                                         AR20110016097





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ABCMR Record of Proceedings (cont)                                         AR20110016097



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