IN THE CASE OF:	  

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130001042 


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, in effect, reconsideration of his previous request for reinstatement and changes to the reason for discharge to Secretarial Authority and his reenlistment eligibility (RE) code to RE-1.

2.  The applicant states:

	a.  The subject matter he provided is evident by either the document or witness statements taken under oath and raised considerable doubt how his case was handled 10 plus years ago.  He served honorably following the orders given by his command.  Letters of recommendation for promotion to warrant officer showed his intent as a committed Soldier, for remaining in service until retirement, and for reenlisting for 6 months.  There is no error regarding his years of service as 18 years, 1 month, 17 days which cannot be changed by this administration, but to only credit him with 14 years of service is unjustly, dissatisfying, unacceptable of the Board's decision.

	b.  He provided as evidence and raised considerable doubt in his case to consider this case unjustly.  It's the contention of the proceeding administration that wished not to honor his benefits for retirement thus deciding to make him ineligible for a change to his RE code.  The Board seriously underestimated the physical and emotional injuries, "impact of a gauntlet," by undermining this case and has deprived him sanitary (victim rights) rightfully due him.

	c.  One hundred and eight-five members of the 119th Field Artillery participated, by order of the commander's staff, to intently physically injure him. He had provided a list names, social security numbers, and addresses.

	d.  His total service time superseded retirement service for benefits in this case.  He has been deprived and is entitled to a sanctuary life, liberty, and the pursuit of happiness as well.  In doing so, this Board has condemned their own for following orders.  This proceedings is taking little note of what he provides as evidence that a cerebral brain injury caused memory behavioral loss and consequently changes of a close head injury.

   e.  Trauma to the head may or may not include injury to the brain; however, the terms traumatic brain injury and head injury are often used interchangeably in medical literature.  Hypoxia is a pathological condition in which the body as a whole or a region of the body is deprived of adequate oxygen supply.  A stroke is a sudden disabling attack or loss of consciousness caused by an interruption in the flow of blood to the brain, especially through thrombosis.  Hemorrhage is an escape of blood from a ruptured blood vessel, especially when profused.
   
   f.  He never once gave his content to be discharged under Title 10. U.S. Code (USC), section 1176(b).  This is his claim and he should be eligible for retirement because of the delay of over 10 years.

3.  The applicant provides no additional evidence.

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 AR20120005529, on 20 September 2012.

2.  The applicant requests were previously considered by the Board on 20 September 2012 and his current request was received on 5 January 2013, within one year of ABCMR's original request.  Army Regulation 15-185 allows an applicant to request reconsideration of an earlier decision of the ABCMR if the request is received within one year of the original decision and it has not previously been reconsidered.  Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration.  He now contends he had suffered a Cerebral Brain Injury at the time.  Therefore, this is considered new argument and will be considered by the Board.

3.  The applicant enlisted in the Michigan Army National Guard (MIARNG) on 20 July 1989, with prior Reserve enlisted service.  He completed training and was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).  He was promoted to pay grade E-6 on 6 October 1997.

4.  On 20 April 2001, the applicant's unit commander initiated action to separate the applicant from the MIARNG under the provisions of Army Regulation 135-178 (ANRG and Army Reserve – Enlisted Administrative Separations), 
paragraph 7-7, for Conviction by Civil Court, with a general discharge.  He advised the applicant of his rights.

5.  On 19 May 2001, the applicant acknowledged receipt of the proposed separation action.  After consulting with counsel, the applicant requested a hearing before an administrative board. 

6.  On 20 June 2001, the applicant's unit commander requested the applicant be discharged from the MIARNG.  The unit commander stated that the applicant had been convicted by a civilian court for a felony crime and failed to say anything to his unit or commander for over a year.  The applicant had since been convicted of parole violation and was currently confined for that violation.  Last November 2000, the applicant also tested positive for cocaine use by the Kalamazoo Country Probation Department.  

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders Number 248-015, issued by the State of Michigan, Department of Military and Veterans' Affairs, dated 5 September 2001, discharging him from the MIARNG, under the provisions of National Guard Regulation 600-200, paragraph 8-26e(1), effective 6 September 2001, with a general discharge; and

	b.  his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows he was discharged, in pay grade E-6, on 6 September 2001,under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26e(1), by reason of Conviction by Civil Court, and was issued a general discharge.  Item 26 (RE) of this form shows his RE code as "3."  He completed a total of 14 years of qualifying service for retired pay.

8.  On 12 February 2009, his requested an upgrade of his general discharge.


9.  On 26 March 2009, the MIARNG Discharge Appeals Board denied his request for an upgrade of his discharge, a change to the authority and reason, and RE code.  The denial was approved by the Assistant Adjutant General, MIARNG, on 5 April 2009.

10.  On 1 July 2010, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 135-178, in effect at the time, set the policies for administrative separation of ARNG and Army Reserve enlisted Soldiers.  Paragraph 7-7 stated a Soldier maybe discharged for further military service by reason of a civil conviction.

12.  National Guard Regulation 600-200, in effect at the time, set policies for the enlisted personnel management of the ARNG.  The regulation stated in 

* Paragraph 8-26e, an individual could be separated for misconduct for conviction by civil authorities.
* RE codes are determined at discharge; RE-1 applied to Soldiers who were fully qualified for reentry and RE-3 applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, but the disqualification was waivable.

13.  Title 10, USC, section 1176(b) states 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 active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances which led to his discharge.  However, the available evidence shows his unit commander initiated action to separate him from the MIARNG by reason of civil conviction.  He acknowledged receipt of the proposed separation action.  

2.  On 20 June 2001, his unit commander requested he be discharged and stated that the applicant failed to say anything about his conviction for over a year, had 

been convicted of parole violation and confined, and tested positive for cocaine use by the Kalamazoo Country Probation Department.  His NGB Form 22 shows he was discharged under the provisions of National Guard Regulation 600-200, for Conviction by Civil Court, on 6 September 2001.  On 2 March 2009, the MIARNG denied his request for an upgrade of his discharge.

3.  His contentions have been noted; however, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  He also provides no information supporting he sustained a Cerebral Brain injury during his period of service which prevented his successful completion of service.   

4.  He has provided insufficient argument to show his separation action was unjust and his military record contains no evidence which would warrant an upgrade of his discharge, a change to the reason and authority, and RE code.  The evidence shows his misconduct diminished the quality of his service below that meriting an upgrade of his discharge.  It is presumed he was properly discharged and he has not shown otherwise.  There appears to be no error or injustice in his separation process from the MIARNG.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting him the requested relief.

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 AR20120005529, dated 20 September 2012.



      _______ _  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)                                         AR20130001042





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ABCMR Record of Proceedings (cont)                                         AR20130001042



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