IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130005241 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his separation date as 15 December 2010 vice 13 June 2007.

2.  The applicant also requests a review of the character of his service (general under honorable conditions) and his out-processing from the Active Guard Reserve (AGR) Program.

3.  The applicant states:

* he "worked as if [he] was on active duty" from 13 January 2007 when he was released from Fort Lewis through 15 December 2010 with no breaks in service
* he received pay for this period of service
* prior to that, he was serving on active duty in the AGR Program from 15 February 1996 through 2005
* he deployed to Iraq until September 2006 and then transferred Stateside until 12 January 2007 where he was transferred back to the Army National Guard (ARNG)
* he had completed a total of over 14 years of continuous active service with over 14 years of ARNG service for a total of over 28 years of honorable service
* his DD Form 214 shows he was discharged from active duty due to unacceptable conduct – he does not know why and he does not recall signing the form
* he has orders which show he was honorably discharged for that same time period
* he knows he was supposed to out-process from an active installation and undergo a health assessment before being discharged – this never happened
* he was physically and mentally unable to deal with what was happening from December 2007 to around March 2012
* he served his country and state throughout the years and he encountered several problems, including divorce, the loss of his family, and the loss of his home
* he suffered from various medical issues, including a traumatic brain injury, manic depression, and post-traumatic stress disorder (PTSD)
* he never went through any type of discharge or out-processing station or got the medical help he asked for
* no one computed his active duty points to determine his retirement eligibility
* he made a terrible mistake and sent some souvenirs (two classic Iraqi pistols) home from Iraq which had huge consequences – at the time he wasn't thinking straight and didn't think it was that big of a deal
* he made a deal to plead guilty in exchange for "no dismissal" from the service – he was told the charges and trial would be held at the end of the deployment
* the trial was delayed until the end of the rotation – 6 months after he sent the pistols home
* he witnessed many souvenirs being sent home from theater with so little done about it – weapons going to different politicians and diplomats
* he was released from Fort Lewis and transferred back to the AGR Program 4 months later with a little time off for good behavior – he was given an honorable discharge and sent to his home unit
* when he was being released from active duty to the AGR Program and while in confinement, he raised his emotional and medical issues and was told he'd be treated when he got back to his home unit
* he asked about his next assignment and was told that the commanding general planned to retire him
* he told his unit that he was not eligible for retirement for a few years and had been told he would not get a "dismissal" and would still get his full-time retirement
* he is not sure how the ARNG discharged him – his pay kept coming but his medical benefits stopped


3.  The applicant provides:

* Post-Deployment Health Assessment, dated 10 January 2007
* CAARNG Orders 151-1272, dated 13 June 2007
* DD Form 214 for the period ending 13 June 2007
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 14 June 2007
* selected pages of a Department of Veterans Affairs (VA) medical examination, dated March 2007
* Patient Health History, dated March 2007
* Quest Diagnostics Sacramento – Referral Testing, dated January 2008
* Medical Report from Focus Technologies, Incorporated, dated January 2008
* September, November, and December 2010 military leave and earnings statements
* Congressional correspondence to and from the California ARNG (CAARNG), dated 7 October 2011, 28 November 2011, and 7 December 2011
* extract of Army Regulation 40-501 (Standards of Medical Fitness)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was born on 7 September 1963.  He will reach 60 years of age in 2023.

3.  He was appointed as a Reserve commissioned officer of the CAARNG and executed the oaths of office on 24 May 1996.  He completed the Engineer Officer Basic Course.  He served in a variety of assignments and he was promoted to captain on 26 January 1993 and to major on 31 May 2000.

4.  CAARNG Orders 111-472, dated 21 April 2005, ordered him to active duty as a member of his Reserve unit for a period not to exceed 545 days effective 16 May 2005 in support of Operation Iraqi Freedom under the provisions of Title 10, USC, section 12302.

5.  He entered active duty on 16 May 2005.  He subsequently served in Iraq from 1 to 20 August 2005 and from 15 September 2005 to 12 September 2006.  He was assigned to Headquarters and Headquarters Company (HHC), 49th Military Police (MP) Brigade, Camp Victory, Iraq.

6.  On 12 January 2006, the U.S. Army Human Resources Command (HRC) notified the applicant that he had been selected for promotion to lieutenant colonel (LTC) by a Reserve Component Selection Board that convened on 30 September 2005.  His promotion would be either of the following dates:

* 24 January 2007
* date Federal recognition is extended in the higher grade
* date following the date Federal recognition is terminated in the current Reserve grade

7.  On 31 January 2006, he submitted a memorandum to The Adjutant General CAARNG, requesting to delay promotion to LTC as a Reserve of the Army and ARNG until not later than "indefinite."  His promotion delay was approved on 22 March 2006.

8.  On 12 September 2006 consistent with his pleas, he was tried and convicted by a general court-martial of:

* charge I – one specification of stealing one Russian style pistol, one Tariq pistol, and at least five rounds of 9-milimeter ammunition loaded in a magazine
* charge II – dismissed
* charge III – one specification of knowingly attempting to fraternize with a female junior enlisted Soldier

9.  The court sentenced him to forfeiture of $4,078.00 pay per month for 4 months and confinement for 4 months.  His pretrial agreement stipulated that the convening authority would disapprove an adjudged dismissal and dismissal of charge II and its specifications after the judge accepts his pleas of guilt.

10.  On 24 October 2006, the applicant's brigade commander notified the applicant that he was initiating action to involuntarily separate him from the AGR Program for misconduct with the issuance of a general discharge.  He stated the specific reasons as the applicant's general court-martial conviction of larceny and attempted fraternization that resulted in his confinement for 4 months in a military detention facility.  The authority is listed as chapter 6-6 of National Guard Regulation 600-5 (The AGR Program – Title 32, Full-Time National Guard Duty (FTNGD)).

11.  A memorandum from the AGR Deputy Staff Judge Advocate for The Adjutant General, CAARNG, dated 20 November 2006, subject:  Request for AGR Separation of (Applicant), stated, in part:

	a.  "I have reviewed the attached file which supports the AGR separation for cause pending against [Applicant].  Based on the fact that [Applicant] was convicted at Court-Martial for larceny and attempted fraternization, I find that the file is legally sufficient to proceed."

	b.  "Recommend approval based upon… [his conviction].  IAW [in accordance with] NGR [National Guard Regulation] 600-5, paragraph 6-5(c), this conviction at Court-Martial constitutes inappropriate professional and personal conduct as well as moral and professional dereliction…[Applicant] was notified of this action on 24 October 2006 but he chose not to acknowledge receipt and he did not submit any matters for your consideration."

12.  HRC Orders A-12-631528, dated 28 December 2006, ordered him to report to the Administrative Legal Hold, Fort Lewis, WA, for active duty effective 12 November 2006 for a period of 2 months and 2 days terminating on 12 January 2007.  The orders listed the additional instruction:  "Relieved from Reserve Component assignment on the day preceeding effective date of order."

13.  He was honorably released from active duty on 12 January 2007.  His DD Form 214 for this period of service shows he was released from active duty in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-25a, by reason of completion of required active service.  He completed 1 year, 4 months, and 17 days of active service with lost time under the provisions of Title 10, USC, section 972, from 12 September to 21 December 2006.

14.  CAARNG Orders 22-1045, dated 22 January 2007, ordered him to FTNGD under Title 32, USC, to serve as the S-4 "FTM [Full Time Manning] – Restore Title 32" effective 13 January 2007 with assignment to HHC, 49th MP Brigade, Fairfield, CA.  Under the authority and accounting section the orders stated, "This is a consecutive AGR tour renewal."

15.  He entered active duty on 13 January 2007.  He was assigned to HHC, 49th MP Brigade, Fairfield, CA.

16.  On 1 March 2007, the CAARNG published a Report of Calendar Year 2007 Officer Selective Retention Board.  This report stated that an Officer Selective Retention Board convened on 26 February 2007 to recommend ARNG commissioned and warrant officers in the grade of colonel and below for selective retention in the ARNG.  The applicant was considered but not selected for continued retention.

17.  CAARNG Orders 65-1091, dated 6 March 2007, ordered him to proceed on a permanent change of station from HHC, 49th MP Brigade, Fairfield, CA, to the Joint Force Headquarters (JFHQ), CAARNG, Sacramento, CA, effective 9 March 2007.  He was attached to Full Time Manning/Title 32.

18.  CAARNG Orders 68-1016, dated 9 March 2007, ordered his release from active duty effective 13 June 2007 and assignment to HHC, 49th MP Brigade.  The reason for his release from active duty is listed as "Title 10."

19.  CAARNG Orders 68-1024, dated 9 March 2007, amended Orders 68-1016 issued by the same headquarters on the same date to show the reason for his release from active duty as "Adverse."

20.  The Adjutant General, California National Guard, notified the applicant by memorandum, dated 15 March 2007, that he was considered but not selected for retention.  As a result, he would be separated from the ARNG by 15 May 2007.  He would be transferred to the U.S. Army Reserve (USAR) or, if desired, transferred to the Retired Reserve.

21.  CAARNG Orders 95-1313, dated 5 April 2007, transferred him from the position of S-4, 49th MP Brigade, to the Engineer Branch, JFHQ, CAARNG, effective 9 March 2007.

22.  CAARNG Orders 151-1272, dated 31 May 2007, ordered his separation from the ARNG in accordance with National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(22), effective 13 June 2007 and transferred him to the Retired Reserve.  The orders stipulated that he would become a member of the USAR under Title 10, U.S. Code, section 3352(b), upon termination of Federal recognition.

23.  He was discharged from active duty on 13 June 2007 with his service characterized as under honorable conditions (general).  His DD Form 214 shows he was discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2b, by reason of unacceptable conduct.  He completed 5 months and 1 day of active service during this period.

24.  He was also discharged from the ARNG on 14 June 2007 with his service characterized as honorable.  His NGB Form 22 shows he was honorably discharged from the CAARNG in accordance with National Guard Regulation 635-100, paragraph 5a(22), and he was transferred to the Retired Reserve.

25.  NGB Special Orders Number 177 AR, dated 26 July 2007, withdrew his Federal recognition and transferred him to the USAR effective 13 June 2007.

26.  It appears he communicated his concerns and issues to his Member of Congress who in turn requested an explanation from the CAARNG.

	a.  In a letter from the Office of the Adjutant General, California National Guard, dated 22 September 2011, the Director of Government Affairs stated the letter was an interim response to the letter pertaining to the applicant.  The applicant believes he was the subject of "double jeopardy" due to a legal conviction he incurred while deployed from 2005-2007.  He states he was told that if he pled guilty to the charges he would be honorably discharged at the end of his active duty deployment and he would be retained in the military. 
He completed his punishment while still serving on active duty.  However, after his deployment, he was discharged from the CAARNG and told that it was due to conduct unbecoming of an officer.  He claims that he requested a medical evaluation during this time due to his duty-related physical injuries and illnesses, but he never received an evaluation.  In addition, when he was released from his AGR position with the CAARNG, he was not out-processed properly and never received an out-processing physical.  The applicant requests to be reinstated to an active duty position with the CAARNG so he can obtain the benefits he deserves.  Information provided by the CAARNG headquarters staff indicates that he underwent the Army National Guard Selective Retention Board process conducted on 15 March 2007.  This board is conducted in accordance with National Guard Regulation 635-102 (Officers and Warrant Officers Selective Retention).  The purpose is to determine selective retention of ARNG officers and warrant officers in the grades of colonel and below beyond 20 years of qualifying service for retired pay.  Since he had accrued over 20 years of qualifying service for non-Regular retired pay, he is one of the Soldiers whose records were reviewed during the Selective Retention Board process.  He was not retained by the Selective Retention Board.  He was notified of the non-selection on 15 March 2007.  On 13 June 2007, he was transferred to the USAR Control Group (Retired Reserve).  This means he will be eligible to receive non-Regular retired pay upon reaching age 60.  In the interim, he is known as a "Gray Area Retiree."  He enclosed an article which provided information as to those benefits the applicant is currently eligible for as a "Gray Area Retiree."  The applicant can obtain additional information about his current retired status from HRC.  In his inquiry letter, the applicant requested reinstatement in the CAARNG.  According to National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 2-8, any individual, regardless of prior U.S. military service component, who was not retained through a qualitative management program, to include Reserve Component Selective Retention Boards, is ineligible for Federal recognition and waivers are not authorized.  Therefore, due to his non-selection for retention, he is ineligible for reappointment.  In regard to his concerns pertaining to an out-processing physical prior to his release from the AGR Program, he is still waiting for information pertaining to this issue.  However, his staff will continue to monitor this case file and will provide updates when they are received.

	b.  In a letter from the Office of the Adjutant General, California National Guard, dated 7 October 2011, the Director of Government Affairs stated the letter was a follow-up response to his letter, dated 22 September 2011, pertaining to the applicant.  Current information provided by the CAARNG staff in response to the applicant's issues involving possible line-of-duty (LOD) determinations or his statement that he wasn't provided with an out-processing physical prior to his release from the AGR Program is as follows:

		(1)  After reviewing his AGR personnel record, there is no indication that he completed a separation health assessment and/ or requested one in writing to the AGR Branch in accordance with Army Regulation 40-501, table 8-2, prior to his release from the AGR Program.  However, he did receive a separation health assessment on 10 January 2007 at Fort Lewis, WA, and was found fit for duty.  Based on that determination, he was released from active duty on 12 January 2007.  He was transferred to the USAR Control Group (Retired Reserve) on 13 July 2007, 6 months after being found fit for duty.  A review of his records also determined that there weren't any LOD records found in hard copy or through the LOD module for him.  The State Surgeon had a copy of the pre-deployment screening and the post-deployment screening with no indication that the Soldier needed to be retained on orders after deployment for a medical issue.

		(2)  If the applicant believes he should have LOD investigations processed for possible LOD injuries/illnesses, he will need to contact the ABCMR and submit his LOD documents to that board for review and determination since he is no longer a member of the CAARNG.  Along with the application form, he needs to ensure that he encloses all the supporting documentation.  The ABCMR staff will guide him as to what is required to submit a request for a LOD determination.

	c.  In a letter from the Office of the Adjutant General, California National Guard, dated 28 November 2011, the Director of Government Affairs stated the letter was in response to the email correspondence, dated 8 November 2011, pertaining to the applicant.  In the current correspondence, the applicant is responding to the information provided in his letter, dated 7 October 2011, addressed to his Member of Congress.  The applicant believes the information pertaining to his out-processing from his AGR position was incorrect.  Current information provided by the CAARNG staff in response to the applicant's inquiry issues is as follows:

		(1)  The applicant stated that in accordance with Army Regulation 40-501, paragraph 8-24, he was required to be given a medical interview before separating from the AGR Program.  The information referenced by him is from the version of the regulation, dated 14 December 2007.  He is correct when he indicates that paragraph 8-24a of that regulation indicates that "AC (Active Component) and AGR (Title 10 or 32) Soldiers separating from the Army will be given a medical interview using DD Form 2697 (Report of Medical Assessment)." However, he was separated from the AGR Program effective 13 June 2007.  At the time of his separation, the version of the regulation, dated 29 May 2007, was in effect.  Paragraph 8-24a of that regulation indicated "Soldiers separating from the Army will be given a medical interview using DD Form 2697."  The regulatory language did not include AGR Soldiers.  The medical documentation that he enclosed with his most recent inquiry letter was not performed at the time of his January 2007 separation; it was dated in March 2007, 2 months after his release from his active duty deployment orders.  However, the notes annotated in that report indicate the doctor encouraged him to seek treatment from the VA.  His enclosed DD Form 2796 (Post Deployment Health Care Provider Review, Interview, and Assessment), dated 10 January 2007, was done at the time of his separation from his active duty mobilization and stated he could perform his military duties (able to perform military occupational specialty) and was cleared for demobilization.  It also indicated that he should follow up at the VA as needed.

		(2)  The applicant stated the only way to resolve the issue was to reinstate him, place him in an AGR status, and separate him correctly.  However, the CAARNG staff believed that he was separated correctly based on the regulation in effect at the time of his separation.  He completed 20 years of service as an "M-Day" Soldier and is currently assigned to the Retired Reserve.  He is entitled to medical treatment through the VA and is encouraged to pursue treatment through that organization.

27.  An advisory opinion was obtained from the NGB, dated 16 October 2013, in the processing of this case.  NGB recommended disapproval and stated:

	a.  The applicant stated he was a member of the CAARNG until 15 December 2010.  He also stated that he did not receive proper out-processing in accordance with Army Regulation 40-501, paragraph 8-24(a), dated 14 December 2007, and the characterization on his DD Form 214 is incorrect.

	b.  In an inquiry letter, the applicant requested reinstatement in the CAARNG. 
The applicant incurred a legal conviction during deployment.  The imposed punishment was completed at Fort Lewis, WA, while the applicant was serving on active duty.  The applicant was released from active duty to the AGR Program in the CAARNG on 12 January 2007 with an Honorable Discharge.  In a memorandum from The Adjutant General, California National Guard, dated 15 March 2007, the applicant was notified of his non-selection for retention under the provisions of National Guard Regulation 635-102.  The memorandum stated, "…[the applicant] will be separated from the Army National Guard by 15 May 2007….The character of [his] service has been noted to be honorable, and [his] records so reflect."  According to National Guard Regulation 600-100 (dated 15 April 1994), paragraph 2-8f(6), any individual regardless of prior U.S. military service component who was not retained through a qualitative management program, to include Reserve Component Selective Retention Boards, is ineligible for Federal recognition and waivers are not authorized.  Due to this non-selection, the Soldier is ineligible for reappointment.

	c.  The applicant was separated from the ARNG on 13 June 2007 and transferred to the USAR Control Group (Retired Reserve) per Orders 151-1272, dated 31 May 2007.  His Federal recognition was withdrawn on 13 June 2007 per NGB Special Orders Number 177 AR, dated 26 July 2007.  There are no documents in his interactive Personnel Electronic Records Management System (iPERMS) file that provide additional information to substantiate any claim that he was retained as a member of the CAARNG past 13 June 2007.

	d.  To support his request, the applicant provided military leave and earnings statements from September 2010 to November 2010.  In order to determine which component the applicant served in, NGB contacted the Defense Finance and Accounting Service (DFAS) to determine his status after June 2007.  The Applicant's Master Military Pay Account (MMPA) shows the applicant was paid from January 2006 through August 2009 out of Accounting and Disbursing Station Number (ADSN) 8551, which belongs to the Theater Financial Management Center based in Kuwait.  An email from the CAARNG U.S. Property and Fiscal Office (USPFO), dated 26 September 2013, indicates the MMPA shows this account falls under the Department of the Navy.  Additionally, it indicates the applicant was accessed into the Navy as of 14 June 2007.  From October 2009 through June 2011, payments were placed in what appears to be a hold status under ADSN 4906.  According to DFAS, this number falls under the USPFO, CA.  In August 2011, the applicant received a final check that was paid out of ADSN 3892 (separation account).  This information supports the applicant's stance that he was in some status in one of the components through August 2011.  This is beyond the 15 December 2010 date claimed by the applicant.

	e.  A search of the applicant's iPERMS file does not reflect any activity beyond June 2007 in the ARNG or the USAR.  Additionally, NGB contacted the records management office for the Navy and was informed that they were unable to locate any records concerning this applicant in their database.  This suggests that the coding to the above account (8551) referencing the Navy as the holder may be an error.  NGB's efforts to obtain copies of orders or a DD Form 214 that would substantiate the applicant's request during this time frame have been unsuccessful.  As a result, NGB recommends the applicant go to the nearest Military Transition Center and request a copy of his DD Form 214 for the referenced time frames.  If he is not successful in this endeavor, the applicant should submit a Standard Form 180 (Request Pertaining to Military Records) to the National Personnel Records Center, 1 Archives Drive, St. Louis, MO  63138, or submit his request online at http://archives.gov to obtain documentation for the time frame in question.

	f.  In regard to the applicant's concerns relating to an error in the characterization and the reason for his discharge on the DD Form 214 for the period 13 January 2007 to 13 June 2007, this document is reflective of the applicant's release from the AGR Program.  The applicant indicates that during the time frame referenced in the DD Form 214 he did not have unacceptable conduct.  NGB's efforts to determine what actions resulted in this characterization were unsuccessful.  The CAARNG was unable to provide supporting documentation as to the basis of the characterization of under honorable conditions.  As a result, the applicant has the option to submit an application for the review of the characterization to the Army Discharge Review Board for its consideration at 251 18th Street South, Suite 385, Arlington, VA  22202-4508, or through their website at http://arba.army.pentagon.mil/adrb-overview.cfm.

	g.  The applicant also states that Army Regulation 40-501 (dated 14 December 2007), paragraph 8-24(a), indicates he is required to be given a medical interview using a DD Form 2697 before separating.  The regulation the applicant references does state that "Active Component and AGR Personnel (Title 10 or 32) Soldiers separating from the Army will be given a medical interview using DD Form 2697."  At the time of his separation, Army Regulation 40-501 (dated 29 May 2007) was the regulation in effect and paragraph 8-24(a) reads, "Soldiers separating from the Army will be given a medical interview using DD Form 2697."  Even though the guidance does change the verbiage, it is understood that when reference is made to "Soldiers" within the regulations, it covers all Soldiers regardless of the type of program they may be in at the time.

	h.  An email from the CAARNG, dated 1 October 2013, states in part, "we do not have his full medical record due to the time period that has elapsed since this Service Member was in the CAARNG.  I was able to review his last evaluation from his Post Deployment Health Assessment.  There were no notations from the medical provider indicating a reason to keep the Service Member in a treatment facility for additional care or evaluation.  No behavioral health issues were annotated by the medical provider.  He was cleared to DEMOB [demobilize] on 10 JAN 2007.  We do not have any other records indicating that he reported medical issues after he returned home and he was not on any of our medically non-deployable tracking systems.  If the Service Member sought care from a civilian provider, he would have to report his condition to his Chain of Command lAW AR 40-501 and he would have to provide those medical documents for review and inclusion in his military health record."

	i.  As a member of the AGR Program, the applicant had the flexibility to make medical appointments regarding his health/mental status at his own discretion.  There is email and some medical documentation from a civilian doctor indicating the applicant had valid concerns regarding being diagnosed with symptoms of PTSD.  CAARNG research indicates the applicant did not give this documentation to the appropriate personnel for inclusion in his medical file.  If the applicant can provide sufficient medical documentation to support his claim, he may resubmit a request to ABCMR for consideration.  The applicant has the option to go to the nearest VA office for an evaluation.

	j.  The CAARNG supports this recommendation.

28.  The applicant was provided with a copy of this advisory opinion, but he did not respond or provide a rebuttal within the allotted time.

29.  National Guard Regulation 600-5 prescribes policies and procedures for management of the ARNG Soldiers in the AGR Program who serve on FTNGD, Title 32.  Chapter 6 provides for many reasons that could lead to involuntary separation from the AGR Program.  These include inappropriate professional or personal conduct and/or moral or professional dereliction.

30.  National Guard Regulation 635-100 provides policies and procedures governing the separation of commissioned officers of the ARNG.  Paragraph 5 provides for termination of State appointment.  Paragraph 5a(22) states that State appointment can be terminated as a result of failure of selective retention.

31.  National Guard Regulation 600-100 provides policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, transfers between States, branch transfers, area of concentration designation, utilization, branch detail, attachment, and separation of commissioned officers of the ARNG.  Paragraph 2-8 provides for persons ineligible for Federal recognition and waivers are not authorized.  Those include any individual, regardless of prior U.S. military service component, who was not retained through a qualitative management program, to include Reserve Component Selective Retention Boards.

32.  Title 10, USC, section 3352(b) (renumbered as section 12213), states that unless discharged from his appointment as a Reserve officer, an officer of the ARNG of the United States whose Federal recognition as a member of the ARNG is withdrawn becomes a member of the USAR.  An officer who so becomes a member of the USAR ceases to be a member of the ARNG of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 16 May 2005 to 12 January 2007.  During this period of active service, he pled guilty and was convicted by a general court-martial of larceny and fraternization.  As a result, his chain of command initiated separation action against him.  He was removed from active duty and appears to have received an honorable characterization of service by a windfall.

2.  He was again ordered to FTNGD on 13 January 2007 under Title 32, USC, to serve as the S-4, HHC, 49th MP Brigade, Fairfield, CA.  The orders stated, "This is a consecutive AGR tour renewal."  Meanwhile, his records were considered by an ARNG Selective Continuation Board which did not select him for retention.  He was required to be discharged or, if desired, transferred to the Retired Reserve.

3.  He was discharged from active duty on 13 June 2007 with an under honorable conditions (general) character of service.  His DD Form 214 shows he was discharged in accordance with Army Regulation 600-8-24, paragraph 4-2b, by reason of unacceptable conduct.  He was also discharged from the ARNG on 14 June 2007 with an honorable characterization of service.  His NGB Form 22 shows he was honorably discharged from the CAARNG in accordance with National Guard Regulation 635-100, paragraph 5a(22), and he was transferred to the Retired Reserve.

4.  It is unclear why he received a general discharge upon his discharge from active duty on 13 June 2007.  A review of his discharge by this Board is premature.  He is advised to apply to the ADRB for a review of his discharge since he was discharged within that board's 15-year statute of limitations.

5.  He contends that he served continuously on active duty through 15 December 2010.  However, NGB withdrew his Federal recognition on 14 June 2007.  He was transferred to the Retired Reserve.  There are no orders authorizing his transfer from the Retired Reserve to active duty under a competent authority.  Likewise, there is no activity – such as monthly battle assemblies, annual training, active duty, or other activity – performed by him since his transfer to the Retired Reserve.  The fact that he was being paid for active duty service appears to be in error and is not corroborated by any evidence.

6.  He contends he was not allowed to out-process properly.  The evidence of record shows he was issued orders to proceed to Fort Lewis, WA, for 2 months and 2 days.  It is unclear why he did not out-process as he contends.  It is equally unclear how he departed the installation without out-processing.  As a major and commissioned officer, he knew or should have known of the requirement to out-process from the installation prior to departure.  Perhaps he did not exercise due diligence.

7.  He contends that he suffered from a traumatic brain injury, manic depression, and PTSD.  However, he does not provide any service medical records or other medical records that confirm he was diagnosed with such conditions, the degree of severity, the impact on his ability to reasonably perform the duties required of his former grade and military specialty, a commander's evaluation of his performance, or a review by the Surgeon General of his behavioral/mental and/or physical health.  The fact that he may have reached out for help does not equate to a finding of unfitness.

8.  After a comprehensive review of his records, there is insufficient evidence to support any of his contentions.  As such, there is insufficient evidence to grant 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 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.

ABCMR Record of Proceedings (cont)                                         AR20130005241



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20130005241



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1