IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110017356 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in connection with a court remand from the U.S. District Court for the District of Columbia, correction of the applicant's military records:

	a.  to declare the administrative separation board's findings of fact and recommendation that the applicant be involuntarily separated legally flawed and unjust;

	b.  to void the U.S. Army Reserve (USAR) decision to involuntarily separate the applicant;

	c.  to reinstate the applicant in the USAR Individual Ready Reserve (IRR) as a noncommissioned officer in the rank of sergeant first class/pay grade E-7 in military occupational specialty (MOS) 18D (Special Forces);

	d.  to promote the applicant to the rank he would have attained had he not been improperly separated;

	e.  to remove all documents or materials from his official military personnel file (OMPF) pertaining to or referencing "fraud" and his involuntary separation arising from or pertaining to the wrongful actions of the applicant;

	f.  to reinstate all the rights, retirement points, benefits, pay, time in service, and full incidents of military service to which the applicant is entitled as if his unlawful/erroneous discharge had never occurred; and

	g.  to award any other relief the Army Board for Correction of Military Records (ABCMR) deems necessary or just.

2.  Counsel states the separation board violated several Army regulations and constitutional protections when it recommended him for involuntary separation on 16 February 2005.  Counsel provides a 24-page memorandum detailing facts, statutory and regulatory guidance, requested relief, and argument.

	a.  Counsel states that after numerous attempts for a legal review within the Army, the applicant filed a complaint in Federal court alleging numerous allegations of illegality.

	b.  The Federal court remanded the applicant's case to the ABCMR for review of the applicant's separation board proceedings held in 2004.

	c.  On 1 May 2004, the applicant was brought before a separation board for charges of fraudulent enlistment and erroneous enlistment in the USAR based on his failure to disclose his previous discharge from the California Army National Guard (ARNG) with a character of general under honorable conditions.

	d.  Because this case has been remanded by the Federal court, the normal 
3-year statute of limitations does not apply.

	e.  The applicant served as a member of the U.S. Army in various components from August 1981 through May 2005.  He was on active duty from 1 April 1982 to 22 July 1983 and was transferred to the USAR Control Group (Annual Training).  During the next 11 years, he was deployed on numerous occasions as a special forces-qualified medic.

	f.  On 11 July 1994, the applicant was appointed as a chief warrant officer in the Washington ARNG.  On 15 September 1995, he executed his oaths of office as a first lieutenant and was accordingly so appointed.  On 14 November 1995, he requested to be released from the Washington ARNG due to conflicts between his ARNG duties and his civilian employment.

	g.  On 6 January 1996, the applicant was officially notified that an investigation had been initiated prior to his November 1995 request to be released from the ARNG and as a result, action had been initiated to withdraw his Federal recognition as a first lieutenant.  The applicant was given 5 days in which to respond.  The notice indicated the allegations were based on his misrepresentation concerning attendance at the Special Forces Combat Diver Qualification Course.

	h.  On 11 July 1996, the applicant submitted a request to resign in lieu of separation proceedings, citing pressure from his civilian employer.  His request was approved on 24 July 1996.  He was separated from the Washington ARNG by reason of resignation in lieu of proceedings for withdrawal of Federal recognition with a character of general under honorable conditions.

	i.  The applicant was contacted by an Army recruiter who informed him that he was eligible to enlist in the USAR IRR even with a general discharge.  On 16 December 1996, the applicant vacated his commission.

	j.  On 27 January 1997, the applicant enlisted in the USAR IRR as a staff sergeant in his special forces MOS for a period of 4 years.

	k.  On 27 August 1997, the applicant was released from the USAR IRR and assigned to the California ARNG.  His commander placed him in an inactive status due to civilian employment requiring extensive travel.

	l.  In October 1997, the Personnel Security Manager (PSM) notified the California ARNG that the applicant's security clearance had been suspended.  Counsel contends this was erroneous and without any basis.  The PSM stated the applicant had a DD Form 214 from the Washington ARNG indicating he had an honorable character of service, but it was not issued by the Washington ARNG.

	m.  The California ARNG issued orders discharging the applicant from the ARNG and as a Reserve of the Army with a general under honorable conditions character of service effective 1 November 1997.  The corresponding National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the reason for separation as "fraudulent entry" and the applicant was not available for signature.  Counsel states the applicant was not given any notification of this action or an opportunity to respond.

	n.  After a lengthy investigation by the Inspector General and the Staff Judge Advocate, the applicant was asked if he wanted to return to the California ARNG in his previous status.  Because he no longer resided in California, he chose to be reassigned to the USAR IRR.  He was advised that his records would be corrected and he would be returned to the IRR.  In addition, because of the errors that prevented him from serving, he would receive full constructive credit for retirement purposes and time in grade for promotion purposes.
	o.  On 25 April 2000, the California ARNG Office of the Adjutant General (TAG) issued orders revoking the previous orders that discharged the applicant from the California ARNG and as a Reserve of the Army effective 1 November 1997.  The California TAG also issued orders that same day discharging the applicant from the ARNG and assigning him to the USAR Control Group (Annual Training) with an effective date of 1 November 1997.  He was discharged with a general under honorable conditions character of service.

	p.  Counsel contends the California ARNG failed to correct the reentry eligibility (RE) code 3 (RE-3) or the adverse characterization of service and the applicant was unaware of this oversight.

	q.  On 5 July 2000, the applicant reenlisted in the USAR IRR for a period of 6 years.  He subsequently served the next 2 years on active duty in support of operations following the 11 September 2001 attacks.

	r.  Effective 17 January 2003, a suspension of personnel actions (flag) prevented him from participating in any Reserve activities whatsoever.  He was selected for promotion to sergeant first class/pay grade E-7 in September 2004, but the flag prevented this promotion from becoming effective.

	s.  The Military Personnel Technician, U.S. Army Human Resources Command (HRC), was put on notice of a possible discrepancy with the applicant's enlistment in 2000.  However, the subsequent investigation found that the applicant's enlistment contract was sound.  Also, the issues involving filing false claims were not supported as the ARNG had thought and the schooling in question had been approved.  As for his civilian employment, no open cases could be found.

	t.  The applicant was notified by memorandum, dated 14 August 2003, that he would be processed for administrative separation from the USAR for erroneous and fraudulent enlistment.  The separation board convened on 1 May 2004.  A minimum of evidence was presented by the Army.  The only witness was a recruiter who had no knowledge of the applicant's case and was only called to provide his interpretation of Army regulations.  The applicant was not given access to any of the witnesses he intended to call, nor was the board particularly interested in hearing his evidence.  The board recommended his separation for defective enlistment.

	u.  Counsel appealed the board recommendation; however, it was found to be legally sufficient and the applicant was involuntarily discharged from the USAR on 4 May 2005 with a general character of service.

	v.  Counsel states that subsequent to the findings of the separation board, the U.S. Army Recruiting Command (USAREC) Inspector General determined there was insufficient evidence to substantiate that board's findings.

	w.  Counsel states that on or about 20 June 2005, the USAREC Enlistment Standards Division determined all of the findings of erroneous, defective, or fraudulent enlistments were in error.  The investigation determined that the applicant's enlistments were valid and there was no recruiter error.  These findings were referred to the HRC Inspector General who, in turn, referred the applicant to this Board for correction of his records.

	x.  The applicant applied to this Board, but did not receive any relief despite the favorable findings by USAREC.  Having exhausted all administrative remedies, he filed a complaint with the Federal District Court in Washington, DC.

3.  Counsel provides copies of:

* Record of Proceedings (ROP), Department of the Army Board for Correction of Military Records, dated 18 November 2004
* NGB Form 337 (Oaths of Office) dated 15 September 1995
* Orders 268-06, Washington ARNG, dated 25 September 1995
* memorandum, dated 14 November 1995, subject:  Request Immediate Release from Washington ARNG
* Summary of Allegations, dated 6 January 1996
* memorandum, dated 11 January 1996, subject:  Resignation of [Applicant]
* memorandum, Washington ARNG, dated 24 July 1996, subject:  Resignation in Lieu of Proceedings for Withdrawal of Federal Recognition [Applicant]
* Orders 212-04, Washington ARNG, dated 31 July 1996
* NGB Form 22 effective 24 July 1996
* Orders 279-531, California ARNG, dated 6 October 1997
* NGB Form 22, effective 1 November 1997
* Orders 116-1120, California ARNG, dated 25 April 2000
* email, dated 20 June 2005, subject:  Results [of Investigation]
* Orders 116-001, California ARNG, dated 25 April 2000
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) with DA Form 4688 (Certificate and Acknowledgement of Service Requirements), dated 23 January 1997
* DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 17 January 2003, and DA Form 268, dated May 2003
* Calendar Year 2004 Sergeant First Class Promotion List, pages 3 and 4 
of 8
* memorandum for record, undated, concerning the applicant's 1997 enlistment contracts and involuntary separation
* memorandum, USAR Personnel Command, dated 14 August 2003, subject:  Notification of Separation Proceedings Under Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations), Paragraphs 7-2 and 7-4
* Separation Board Record of Proceedings, Fort Lawton, WA, dated 4 April and 1 May 2004
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 1 May 2004
* memorandum, 22nd Legal Support Organization, Seattle, WA, dated 17 May 2004, subject:  Post-Board Submission/Appeal of Administrative Separation Board, [Applicant]
* memorandum, Staff Judge Advocate (SJA), dated 24 July 2004, subject:  Legal Review – Separation Board Proceedings for [Applicant]
* facsimile transmittal, Office of the Inspector General, California ARNG, dated 2 April 2004, with attachments
* memorandum, Deputy Chief of Staff, G-1, USAR Command, dated 10 February 2005, subject:  Involuntary Separation Board Action – Fraudulent Reenlistment – [Applicant]
* Orders D-05-514791, HRC, St. Louis, MO, dated 4 May 2005.

CONSIDERATION OF EVIDENCE:

1.  Document 4, U.S. District Court for the District of Columbia, filed on 9 March 2011 shows the defendant, the Secretary of the Army (SA), requested this case be voluntarily remanded to the ABCMR for the sole purpose to reconsider the issue regarding the validity of the applicant's separation from the USAR in 2005.

2.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Discharge Review Board (ADRB) in Docket Number AR2003093938 on 21 January 2004.

	a.  The ADRB examined the evidence which showed that the applicant was discharged from the California ARNG by reason of fraudulent enlistment with a general, under honorable conditions characterization of service.  He was reassigned to the USAR Control Group (Annual Training).  This discharge was predicated on his failure to disclose his previous discharge from the Washington ARNG with a general, under honorable conditions characterization of service.

	b.  The California ARNG subsequently corrected his original discharge order reinstating his status in the USAR; however, there was no evidence that the California ARNG intended to grant him an honorable discharge or change the reason for discharge.

	c.  The ADRB determined that his 1997 discharge from the California ARNG was both proper and equitable and voted not to upgrade his characterization.

3.  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 AR2004101066 on 18 November 2004.

	a.  The ROP shows that the applicant requested an upgrade of his general discharge in 1997 from the California ARNG and as a Reserve of the Army to honorable.  He also requested reconsideration of issues previously denied by the ABCMR in Docket Numbers AR1999010428, dated in June 1999; and AR1999033359, dated in February 2000.  Those issues dealt with his loss of a commission and military awards, neither of which will be further discussed herein.

	b.  The ABCMR determined the circumstances surrounding the applicant's resignation from the Washington ARNG and the type of discharge he received created disqualifications for enlistment that could not be waived.  Therefore, his January 1997 enlistment in the USAR was fraudulent.

	c.  The ABCMR further determined that because his enlistment in the USAR was fraudulent, then his subsequent transfer to the CAARNG followed by his reenlistment in the USAR could not be legitimate.

	d.  The ABCMR concluded that the California ARNG did not afford the applicant due process.  However, any injustice that may have occurred as a result was rectified when the California ARNG corrected their discharge orders to show an honorable discharge and changing the reason and authority for discharge and the effective nullification of his separation from the USAR.  There was no further injustice to consider.

	e.  In view of the above, the ABCMR denied the applicant's request to upgrade his 1997 discharge from the California ARNG.

4.  A DD Form 4 (Enlistment/Reenlistment Document) shows that the applicant reenlisted on 5 July 2000 for a period of 6 years in the USAR in the rank of staff sergeant, pay grade E-6.  The remarks section indicates that he had immediately reenlisted for the IRR and the Individual Mobilization Augmentation (IMA).
5.  In a memorandum, dated 14 August 2003, the USAR Personnel Command notified the applicant of the action to consider him for separation from the USAR for erroneous enlistment and for fraudulent enlistment.  The reason for this action was that his general discharge from the Washington ARNG in 1997 made him ineligible for a USAR reenlistment in 2000.

	a.  The USAR separation board convened on 4 April 2004; adjourned that same day, and reconvened on 1 May 2004.  It determined:

	b.  that the applicant's reenlistment in the USAR in 2000 was both erroneous and fraudulent because his earlier enlistment into the California ARNG and USAR as an IRR was fraudulent because he had not waited 2 years, as required due to his general discharge; and

	c.  that the applicant's subsequent discharges and transfers were equally invalid as fruit of the earlier action.

	d.  that the applicant had committed a defective reenlistment and did not have the potential for rehabilitation for further useful military service.

	e.  that the applicant be separated because of a defective reenlistment, that the applicant's characterization of service be other than honorable, and that the board's recommendation not be suspended.

6.  Orders D-05-514791, HRC-St. Louis, dated 4 May 2005, discharged the applicant from the USAR IRR effective that same date with a general characterization of service.

7.  The applicant’s Statement of Retirement Points shows he earned 15 membership points only during retirement year ending (RYE) 27 August 2001;  29 retirement points during RYE 27 August 2002; 15 membership points only during RYE 27 August 2003; 15 membership points only during RYE 27 August 2004; and 10 membership points only during RYE 4 May 2005.

8.  In the processing of this case, an advisory opinion was requested from the Chief, Operations Management Division, HRC, Fort Knox, KY.  The resulting opinion limited its scope to the arguments presented by the applicant's counsel.

	a.  The advisory opinion's response to counsel's argument that "the separation board's evidence against [the applicant] was both legally and factually insufficient" states:

The assumption that the board was based on an erroneous 1997 California ARNG discharge for fraudulent enlistment which had already been revoked and amended cannot be supported by exhibit 23 as stated.  Exhibit 23 was a post-board submission/appeal by the applicant's counsel and was based on his arguments and not necessarily facts.

The argument further contends that exhibit 26, [name omitted] fax, confirmed that the California ARNG discharge, quoted by HRC as the specific basis for the separation board, was erroneous.  Exhibit 26 contains no memo from [name omitted] directing overturn of the erroneous discharge as stated on the facsimile cover.  Additionally, the NGB Form 22 provided only has hand-entered strike-throughs and pen and ink changes, no NGB Form 22A was provided.  All orders provided by the facsimile also have hand-entered strike-throughs and pen and ink changes.  There is no supporting documentation to suggest that an erroneous discharge was overturned.

The documentation in the files also appears to be incomplete, illegible, or insufficient to allow for a true determination of [the applicant's name] or the Army's actions.  On the surface though, it appears the board violated several basic rights.  As it [is] probably too late to go back and redo the Board, the only real opportunity for change is the ABCMR.

	b.  The advisory opinion's response to counsel's argument that "the Army's notification of separation proceedings violated Army Regulation notification requirements" states:

The notification of separation proceedings under Army Regulation 135-178, paragraphs 7-2 and 7-4, was sent to the [applicant] on 14 August 2003.  The notification specifically addressed the regulation and paragraphs for which the [applicant] was being considered for separation.  It also specifically stated that 'the reason for my proposed action is that you received a general (under honorable conditions) discharge from the ARNG and thus were not eligible for reenlistment under Army Regulation 140-111, table 4-2, rule D, when you reenlisted in April 2000.  The argument continues that the basis for the hearing was so vague that it did not specify whether the allegation charged was fraudulent enlistment or alternatively erroneous enlistment.  Both the fraudulent and erroneous enlistment paragraphs were stated in the notification memorandum with the reason for proposed action serving as the basis for both.  This does not appear to violate the provisions of Army Regulation 135-178 and is supported by the legal review conducted by [name omitted], SJA, in his legal review of the board proceedings which he found to be complete and in accordance with Army Regulation 15-6 and Army Regulation 135-178.  However, the command charged both fraudulent and erroneous enlistment and should have decided on one basis prior to notification.  Further review by [the] HRC SJA determined the command legal review to be legally insufficient, as [name omitted] did not address that the board failed to find one or the other basis and instead substituted an inappropriate basis for misconduct.

In the separation board findings the board determined the enlistment was erroneous based on the fraud on the [applicant's] part and because it should not have happened.  The board further determined that the enlistment was fraudulent based on the regulation in that the general discharge in August 1996 required a 2-year period prior to applying for a waiver.

However, HRC SJA review indicated the fact that he applied earlier than the 2-year period cannot and should not be the basis for a claim of fraudulent enlistment.  Furthermore, [in accordance with] Army Regulation 135-178, paragraph 2-11, the discharge must be honorable instead of general if the enlistment is declared erroneous (versus fraudulent).  Additionally, the enlistment has to be declared either erroneous or fraudulent, not both.  The [applicant] enlisted in the USAR as an IRR less than 6 months after the discharge.  The board further stated that the [applicant] admitted in his letters that he had never received a waiver.  It is unclear to which letters the board was referring.

The argument continues with the assertion that the Army failed to include and list with the notice the documents, witnesses, reports, and other information upon which the board was based, as required by Army Regulation 15-6, paragraph 5-5a.  This paragraph deals with notice from the board recorder in advance of the first session of the board concerning the [applicant] and providing the [applicant] with certain information.  Army Regulation 135-178, paragraph 
3-11(a), figures 3-5 and 3-6, require that the [applicant] receive any documents which will be relied upon for the commander's decision.  However, this error was mitigated by a 4-week board recess to find additional documentation (i.e. enlistment documents, witness statements, etc.).

The argument also refers to evidence produced against [the applicant] at trial.  It should be reiterated that this was an administrative separation proceeding and not a trial.

	c.  The advisory opinion's response to counsel's argument that "the separation board violated [the applicant's] right to call witnesses" states:

In accordance with Army Regulation 135-178, paragraph 3-18c, the recorder of the board will, on written request of the [applicant] endeavor to arrange for the presence of any available witness the [applicant] desires to call.  The [applicant's] counsel did request a continuance until witnesses were available and put on the case.  The board's legal advisor directed the [applicant's] counsel to renew his motion at the close of the case.  The [applicant's] counsel, later in the proceedings, advised the legal advisor that if continuance was proper then [applicant] calls [two names omitted] as [the applicant's] witnesses.  The legal advisor advised the board president that the continuance was needed to understand the reason for the retroactive [sic] and the need for witnesses to find out why it was done and the basis for it.  The board president granted a continuance on 4 April 2004 and the board did not reconvene until 1 May 2004.  When the board reconvened on 1 May there was no further discussion regarding the witnesses and their availability or lack thereof.  Counsel for the [applicant] specifically requested the witnesses and they were not produced.  Based on the record alone, the Army constructively refused to allow the witnesses.

[The applicant's] counsel also requested the recorder to call [name omitted] of HRC.  The argument contends that [name omitted] refused to appear in direct contravention of Army regulations.  In accordance with Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), paragraph 3-8, boards generally do not have authority to subpoena witnesses to appear and testify.  An appropriate commander or supervisor may, however, order military personnel and Federal civilian employees to appear and testify.  If [name omitted] commander or supervisor did not order [the person] to appear she would not be required to do so.  Again, counsel for the [applicant] on the record requested the witness, who was not then produced by the Army with no explanation why not.  This is not appropriate; either the command should have ordered [the person] there or explained on the record why not.

	d.  The advisory opinion's response to counsel's argument that "the separation board violated Army regulation by considering disqualifications beyond the scope of what is allowed for under Army Regulation 140-111" states:

Army Regulation 140-111 is the USAR Reenlistment Program; this argument should be addressed by retention subject matter experts (SME).

	e.  The advisory opinion's response to counsel's argument that "the separation board failed to acknowledge [the applicant's] 1997 enlistment was authorized under Army Regulation 601-210 and was a prior-service enlistment" states:

Army Regulation 601-210 is the active and Reserve enlistment program; this argument should be addressed by recruiting SME.

	f.  The advisory opinion's response to counsel's argument that "the Separation Board's proceedings violated [the applicant's] right to due process" states:

Cases cited are correct; general requirement that Army follow proper procedures in separation actions.  Based on documents provided, his right to due process was violated.  He was not provided proper notice of evidence of misconduct.  Insufficient evidence was presented at the separation board.  The board made inappropriate findings based on a basis [sic] which was not notified as a possible basis for separation.  The initial SJA review attempted to define/correct erroneous board findings.

	g.  The advisory opinion's response to counsel's argument that "the separation board's proceedings violated [the applicant's] right to a fair hearing" states:

Cases cited are correct; general requirement that Army follow proper procedures in separation actions.  Based on documents provided, his right to a fair hearing was violated.  He did not have adequate opportunity to defend himself, examine documents, and call witnesses.  He was found liable for misconduct which was not properly notified as a basis for separation.
	h.  The advisory opinion's response to counsel's argument that "as a matter of policy, using the system to abuse a committed Soldier is unjust and contrary to Army objectives and goals" states:

There is no evidence that any Army personnel attempted to use the separation process or other Army systems to abuse [the applicant] or intentionally act in an unjust manner or contrary to Army objectives and goals.

This argument also cites Army Regulation 601-210 and discusses verification and resolution by USAREC recruiting teams.  The argument should be addressed by USAREC.

9.  In a letter dated 13 January 2012, the applicant's counsel provided a lengthy response to the advisory opinion and provided additional documentation.  Counsel noted that contrary to the Case Management Division's transmittal letter, the advisory opinion does not "contain an unfavorable recommendation."  Indeed, it contains no recommendation at all.  Of the eight arguments advanced in the ABCMR memorandum, the advisory opinion agreed with four, recommended referral of two arguments to other Army offices, and disagreed in part and recommended referral in part for one argument.

	a.  In response to paragraph A of the advisory opinion, counsel states the ABCMR memorandum argued that the separation board's evidence was legally and factually insufficient.  This is the only argument with which the advisory opinion wholly disagreed and it disagreed on grounds that the evidence was insufficient.  Specifically, the advisory opinion stated that ABCMR memorandum, exhibit 26, did not contain a memorandum directing the overturn of the erroneous discharge or an NGB Form 22A.  In response, counsel has provided both documents.

	b.  In response to paragraphs B, C and F of the advisory opinion, counsel states the ABCMR should adopt the advisory opinion's findings and grant the applicant full relief.

	c.  In response to paragraph D and E of the advisory opinion, counsel states the ABCMR memorandum argued that the separation board violated Army regulation by considering disqualifications beyond the scope of what is allowed for under Army regulation.  In response, the advisory opinion recommended that these arguments be addressed by retention SME.  The fact that the Board has not forwarded these particular matters for an opinion from the SME suggests that the Board believes itself competent to adjudicate on the matters.  Based upon the arguments set forth in the ABCMR memorandum, the Board has sufficient reason to decide in [the applicant's] favor and grant full relief.

	d.  In response to paragraph G of the advisory opinion, counsel states the ABCMR memorandum argued that as a matter of policy, using the system to abuse a committed Soldier is unjust and contrary to Army objectives and goals.  The advisory opinion found no evidence that Army personnel attempted to use the separations process or other Army systems to abuse [the applicant] or intentionally acted in an unjust manner or contrary to Army objectives and goals.  Because the Board has not forwarded the issue for an additional advisory opinion, it is reasonable to assume the ABCMR believes itself competent to adjudicate on the matter.

	e.  Counsel further argues the ABCMR has "an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief."  Accordingly, the Board should adopt the advisory opinion's findings where it concurs with the [applicant's] arguments, take into account newly-provided evidence in finding in [the applicant's] favor on the argument detailed in paragraph A of the advisory opinion.  In finding for [the applicant], the Board should take careful note of its mandate and, in the absence of any recommendations from USAREC, grant the full and fitting relief requested in [the applicant's] court-remanded application 

10.  During the processing of this case, a question/concern arose about the validity of certain documents provided by the applicant.  A request to the California ARNG for verification of those documents resulted in a determination that all questionable documents, and in particular, Orders 146-1027, dated 
25 May 2004 and NGB Form 22A, dated 1 April 2004 were indeed valid and contained in the files of the California ARNG.

11.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG and USAR.

	a.  Paragraph 1-10b states the Commander, HRC, is the separation authority for USAR Soldiers assigned to the IRR.

	b.  Paragraph 7-2 (Erroneous Enlistment, Reenlistment, and Extension) states a Soldier may be discharged on the basis of an erroneous reenlistment if it would not have occurred had the relevant facts been known by the Government or had appropriate regulations been followed, it was not the result of fraudulent conduct on the part of the Soldier, and the defect is unchanged in material respects.
	c.  Paragraph 7-3 (Defective Enlistments or Reenlistments) states a defective reenlistment exists as a result of a material misrepresentation by recruiting or retention personnel upon which the Soldier reasonably relied and the Soldier was induced to enlist or reenlist with the commitment for which the Soldier was not qualified.

	d.  Paragraph 7-4 (Fraudulent Enlistments or Reenlistments) states a Soldier may be separated on the basis of a fraudulent reenlistment through any deliberate material misrepresentation, omission, or concealment which, if known at the time of the reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.

DISCUSSION AND CONCLUSIONS:

1.  This case was remanded to the ABCMR to solely reconsider the issue regarding the applicant's separation from the USAR in 2005.

2.  A review of all previous cases considered by the Army Discharge Review Board and the ABCMR showed that the focus was on the applicant's discharge in 1997 and the resulting issues brought by the applicant.  There is no evidence showing that his discharge from the USAR in 2005 had ever been reviewed.

3.  The basis for 2004 USAR separation board was a belief that his USAR reenlistment in 2000 was either erroneous, fraudulent, or both.  This presumption was based on his previous general discharges from both the Washington ARNG and the California ARNG.

	a.  The applicant, through his counsel, in effect, argued that his last separation from the California ARNG was honorable and that his subsequent entry into the USAR was therefore valid.   However, the board did not accept this argument as fact, most likely due to the lack of convincing orders and other documents.

	b.  Accordingly, he was discharged from the USAR effective 4 May 2005.

4.  In connection with the processing of this case, the appropriate officials within the California ARNG have stated that the applicant's NGB 22A, dated 1 April 2004 and orders dated 25 May 2004, both showing he was discharged with an honorable characterization of service and an RE-1, are valid and currently maintained in their files.  It does not appear that the USAR separation authority saw or considered either of these documents prior to issuing the 2005 discharge order.

5.  The advisory opinion obtained in this case agreed with the applicant on four of the eight arguments and clearly found the separation board had violated his rights to due process.  Furthermore, the advisory opinion recommended that two of the arguments that dealt with recruiting and retention issues be referred to SME.  However, there is no apparent reason to doubt the accuracy of the email provided by the applicant's counsel concerning the validity of his enlistment in 1997.

6.  Due process or no due process, the analysis for granting relief in this case is clear cut.  The USAR separation board premised its decision upon the applicant's fraudulent entry in the USAR and California ARNG in 1997 and the subsequent ripple effect of that decision.  The California ARNG's amendment of discharge orders in 2004 fundamentally undermined the basis for the discharge action.  In effect, the final amendment to the discharge orders changed the nature of his service.  Even if his 1997 enlistment was erroneous or fraudulent, any bar to reenlistment was removed when his record was effectively corrected to show that period of service ended with an honorable characterization of service and an RE code of 1.  As that was his status when he reenlisted in 2000, his 6-year reenlistment on 5 July 2000 was valid.

7.  Reenlistment requires a volitional act on the part of a Soldier, and it would be purely speculative to find that the applicant would have reenlisted upon his expiration term of service on 4 July 2006.  Therefore, any retention of the applicant in the USAR beyond 4 July 2006 would not be warranted.

8.  In view of the above and as a matter of equity, the applicant's records should be corrected by:

	a.  removing all documents pertaining to the USAR separation board, to include all documents pertaining to, or referencing, any fraudulent acts by the applicant arising out of the separation board;

	b.  revoking Orders D-05-514791, U.S. Army Human Resources Command, dated 4 May 2005 and showing he was retained in the USAR, earning the appropriate number of membership points during that period of retention, until he was honorably discharged due to the expiration of his term of service on 4 July 2006;

	c.  showing he was promoted to sergeant first class, pay grade E-7, in accordance with the Calendar Year 2004 Reserve Promotion List, if otherwise qualified, with the same effective date and date of rank as he would have originally received had he not been discharged;

	d.  placing a statement in his official records explaining the non-rated period that commenced with his discharge in 2005;

	e.  if eligible, submitting his records to any and all standby selection boards for promotion consideration to master sergeant/pay grade E-8 that he should have been previously considered by based on his date of rank to sergeant first class/pay grade E-7; and

	f.  auditing his military pay records and paying him any monies that may be due him as a result of these corrections.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR2004101066, dated 18 November 2004.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing all documents pertaining to the USAR separation board, to include all documents pertaining to or referencing any fraudulent acts by the applicant arising out of the separation board;

	b.  revoking Orders D-05-514791, U.S. Army Human Resources Command, dated 4 May 2005 and showing he was retained in the USAR, earning the appropriate number of membership points during that period of retention, until he was honorably discharged due to the expiration of his term of service on 4 July 2006;

	c.  showing he was promoted to sergeant first class, pay grade E-7, in accordance with the Calendar Year 2004 Reserve Promotion List, if otherwise qualified, with the same effective date and date of rank as he would have originally received had not he been discharged;

	d.  placing a statement in his official records explaining the non-rated period that commenced with his discharge in 2005;

	e.  if eligible, submitting his records to any and all standby selection boards for promotion consideration to master sergeant/pay grade E-8 that he should have been previously considered by based on his date of rank to sergeant first class/pay grade E-7; and

	f.  auditing his military pay records and paying him any monies that may be due him 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)                                         AR20110017356



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ABCMR Record of Proceedings (cont)                                         AR20110017356



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