BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120005529 


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 his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 5 September 2001, be voided and he be reinstated into the U.S. Army Reserve (USAR).  Additionally, he requests as an alternative the reason for discharge be changed to Secretarial Authority and the reenlistment eligibility (RE) code be change to RE-1.

2.  He states he was notified he was being considered for separation on 23 April 2001 via a letter dated 20 April 2001.  He was also notified that he was entitled to a separation board.  He adds that on 19 May 2001 he requested counsel and elected a separation board.  However, he maintains that he was not provided a separation hearing and was discharged on 5 September 2001.  He maintains that at the time of his discharge he had 18 years, 1 month, and 17 days of service.

	a.  He explains he served in the Michigan Army National Guard (MIARNG) from 20 July 1989 to 6 September 2001.  After receiving a promotion to E-6, he was subjected to a "gauntlet."  He was struck several times in the chest by other service members and because of these injuries, he was unable to work.  The injuries caused him to fall behind on a construction job for a former girlfriend, for which he had already been paid.  He says she complained to the police and he was charged and pled guilty to theft by conversion.  He was sentenced to probation for 60 months and he disclosed this information to his commander.

   b.  He states one of the restrictions of his probation was that he could not travel out of the state without permission from his probation officer.  However, since he could no longer perform construction work, he took a job as a private guard for a female client.  The client insisted that he travel to Tennessee and Virginia with her and he attempted to notify his probation officer of his plans to leave the state, to no avail.  He says he left a voice message notifying him, but upon reporting to him on 17 April 2001, he was arrested for violating his probation.

   c.  He states he notified his new commander that he had been in jail for violating probation and on 23 April 2001, he was notified he was being recommended for separation.  The commander claimed the applicant waited over a year before disclosing the conviction.  On 11 July 2001, the commander cited the applicant's conviction and a positive test for cocaine use as justification for the separation action.  The applicant maintains there is no evidence he tested positive for cocaine use or any other drug.  He states that on 6 September 2001 he was separated from the MIARNG without a hearing.  He concludes he applied to the Army Discharge Review Board (ADRB) and was denied. 

3.  The applicant provides the following:

* Self-authored and personal statements
* ADRB Case Report and Directive
* DA Form 2173 (Statement of Medical Examination), undated and unsigned
* DD Form 689 (Individual Sick Slip)
* State of Michigan, Petition and Order for Discharge from Probation, dated 
2 January 2004
* Application and Order Setting Aside Conviction, dated 27 September 2004
* Affidavits, dated 28 August 2002 and 6 September 2002
* State of Michigan Department of Consumer and Industry Service Unemployment Agency Office of Appeals document
* Memorandum, Subject:  Request for Discharge (Conviction by Civil Court), applicant, dated 11 July 2001
* Memorandum, Subject:  Separation Under Army Regulation 135-178 (Enlisted Administrative Separations), Chapter 7 (Section III:  Conviction by Civil Court) (Commander's Notice), dated 20 April 2001
* Applicant's memorandum, dated 19 May 2001

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR and on 24 January 1975, he was ordered to initial active duty training.  He served on active duty for 4 months and was honorably released on 23 May 1975.  On 20 July 1989, he enlisted in the MIARNG.
2.  All the facts and circumstances pertaining to his discharge proceedings under the provisions of chapter 8, paragraph 26e(1), National Guard Regulation      600-200 (Enlisted Personnel Management), are not contained in his available military records.

3.  However, his records show that on 20 April 2001 the unit commander notified him of his intent to recommend his separation from the Army under the provisions of Army Regulation 135-178, paragraph 7-7, Section III, Conviction by Civil Court.  The commander stated that he was suspending action for 45 days to give him an opportunity to exercise his rights.  

4.  On 19 May 2001, the applicant acknowledged receipt of the proposed separation action.  He elected to consult with counsel and to proceed with a hearing before an administrative separation board.

5.  On 20 June 2001, the unit commander requested that the applicant be discharged from the MIARNG.  He said the applicant was convicted by a civilian court of a felony (Larceny by Conversion), and failed to say anything to his unit or commander for over a year, and since then was convicted of parole violation (leaving state without permission) and was confined for that violation.  He said it should also be noted that last November 2000, he tested positive for cocaine use by the Kalamazoo County Probation Department.

6.  On 11 July 2001, the battalion commander concurred with the unit commander's request that the applicant be discharged for a felony conviction by a civil court.  

7.  His NGB Form 22 shows he was issued a general discharge on 6 September 2001, under the provisions of National Guard Regulation 600-200, chapter 8, paragraph 26e(1), conviction by civil court.  He was credited with completing 
12 years, 1 month, and 17 days of "net service this period" for a total of service for pay of 18 years, 1 month, and 17 days of which 14 years was listed as total service for retired pay.  Item 20 (Signature of Person Being Separated) contains the entry of "Soldier not available for Signature."  Item 26 shows his RE code as "3."

8.  The applicant provided a Statement of Medical Examination and an Individual Sick Slip, both dated 8 November 1997.  These documents indicate he was injured in the chest during a "gauntlet."  He was given Ibuprofen and instructed to report to duty with limited physical activity for 24 to 48 hours.  

9.  State of Michigan Department of Consumer and Industry Service Unemployment Agency Office of Appeals document show that the applicant appealed to the court concerning his employment with the Ampco Systems Parking, Inc.  The appeal findings stated the applicant was terminated for not being at work on 18 through 20 April 2001 after being incarcerated for parole violation.  An affidavit from a co-worker, dated 28 August 2002, was also provided to substantiate the applicant's claim to the court concerning his "unjustified" release from that job.  

10.  He also provided an affidavit from a witness, dated 6 September 2002, that substantiates his injury during "Traditional Gauntlet."  In his affidavit, the author stated that he has never witnessed the applicant unable to perform his duties even while under medication.  He said the applicant was an honest and moral man during the time he served in the MIARNG.

11.  He provided documentation to show he petitioned the court to discharge him from probation and requested his conviction be set aside.  The document shows the date of his offense was 17 December 1998 and he was placed on probation on 1 February 1999 for a period of 5 years.  On 27 September 2004, his conviction was set aside.

12.  On 8 May 2009, the MIARNG, Board President, responded to the applicant's request to change his character of military service from general to honorable.  The Board President said the documentation the applicant provided did not change the reason for his discharge, "conviction by a civil court."  He further said the expungement of his court records after his discharge did not change this fact and, therefore, his request was disapproved.

13.  On 1 July 2010, he appealed to the ADRB to upgrade his discharge.  The ADRB denied his appeal on 26 July 2011 citing that the board determined he was properly and equitably discharged.  The ADRB further noted the applicant's record was void of the complete facts and circumstances concerning the events which led to his discharge from the MIARNG.  The ADRB stated on 23 April 2011 that the applicant received his notification letter and acknowledged he was going to exercise his privileges to consult with counsel of the MIARNG.  He was further advised of the impact of the discharge action and he submitted a statement in his own behalf.  There is no mention of the applicant requesting an administration separation board either in the ADRB Case Report or by the applicant.  The unit commander subsequently recommended separation from the MIARNG.

14.  Army Regulation 135-178 provides for the separation of enlisted personnel of the USAR and ARNG.  The regulation defines misconduct as of one or more of the following:  minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.  Discharge is initiated when convicted by civil authorities, or action is taken that is tantamount to a finding of guilty.  The service of a Soldier discharged under this paragraph will normally be characterized as under other than honorable conditions.  If warranted by the Soldier’s overall record, a characterization of service of under honorable conditions may be furnished.

15.  National Guard Regulation 600-200 governs procedures covering enlisted personnel management of the ARNG.  Chapter 8 provides reasons for discharge and separation of enlisted personnel from the State ARNG.  Paragraph 8-26(e) of that regulation provides that individuals can be separated for misconduct by reason of one or more of the following:  minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.

16.  National Guard Regulation 600-200 (Enlisted Personnel Management), states RE codes are determined at separation.  They provide information concerning the Soldier’s service in the ARNG, which will be considered upon future enlistment.  Table 6-1 includes a list of RE codes:

   a.  RE-1 applies to Soldiers who are fully qualified for reentry.

	b.  RE-2 applies to Soldiers discharged before completing a contracted period of service, not contemplating reenlistment, or requesting discharge for reason of pregnancy.

   c.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable 

17.  Section 1176(b) of Title 10, U. S. Code states that, if on the date prescribed for the involuntary separation from an active status of a reserve enlisted member or officer he is entitled to be credited with at least 18, but less than 20, years of qualifying service, he may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that on 17 December 1998 the applicant committed the offense of larceny by conversion.  He was placed on probation on 1 February 1999 for a period of 5 years.  During his probation period, he was incarcerated from 18 to 20 April 2001 for parole violation.  

2.  Although a copy of the applicant's discharge packet is not in the available records the presumption of regularity must be applied.  The applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

3.  The evidence of record shows that on 20 June 2001 the unit commander requested the applicant be discharged from the MIARNG for a felony conviction by a civilian court.  He also said the applicant failed to say anything about the conviction to his unit or commander for over a year.  He further stated that the applicant was convicted of parole violation and confined for that violation and tested positive for cocaine use by the Kalamazoo County Probation Department. 

4.  Even though the applicant argues, in effect, that being subjected to the gauntlet after being promoted to E-6 led to his injury, his inability to work, and his defaulting on a construction job which ultimately caused his felony conviction, there is no evidence and he did not provide any to support his claim.  The evidence of record shows he was returned to duty after being injured from the gauntlet and given Ibuprofen with limited physical activity for 24 to 48 hours.  The treatment rendered by the medical personnel suggests that his injuries were not serious enough to warrant hospitalization and/or a restrictive duty for a significant period of time.  

5.  Nevertheless, there is no evidence and he has not provided any to show that his discharge was rendered in error or unjustly.  In the absence of evidence to the contrary it is presumed his discharge processing was accomplished in accordance with applicable regulations and the narrative reason for separation is appropriate considering all the facts of the case.  Although he now argues he was not afforded the right to appear before an administrative board "hearing" there is no evidence to suggest he requested an administrative board and was denied.  Therefore, in the absence of documentation to supports his claim, the presumption of regularity must be applied.

6.  Additionally, there is no apparent basis for removal or waiver of his disqualification that established the basis for the assigned RE code of 3.  Likewise, there is no basis for changing the authority and reason for discharge to Secretarial Authority.  

7.  Further, the evidence of record shows he was credited with only 14 years of qualifying service; therefore, he was not eligible for sanctuary.  

8.  In view of the foregoing, there is no basis for granting his request.

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 for correction of the records of the individual concerned.



      _______ _ X  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

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