IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130006985 


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 that:

* his voluntary resignation from the Active Guard Reserve (AGR) program be removed from his record
* he be placed back into the Enlisted Promotion System (EPS)
* he be placed in the AGR program in a full-time position in the 114th Transportation Company
* he be reinstated in the rank of staff sergeant (SSG/E6) and receive back pay and allowances

2.  The applicant states, in effect that:

     a.  He does not believe Sergeant Major (SGM) SDC considered his performance prior to working for Sergeant First Class (SFC) HN during which time his noncommissioned officer (NCO) evaluation reports were always above standard.  His evaluation marks plummeted when SFC HN became his rater.

     b.  Based on the advice he received from the Inspector General (IG) Office he decided not to pursue a formal IG complaint.

     c.  On 15 June 2012, he resigned his position in the AGR program under circumstances directly resulting from ongoing harassment and mistreatment by SFC HN, whose biases he believes influenced SGM SDC.  It has been brought to his attention that SFC HN's employment in the AGR program has since been terminated for conduct unbecoming an NCO.
     d.  He has been a member of the Minnesota Army National Guard (MNARNG) for over 19 years.  He was in the AGR program from 2004 until 2012.  He lists several of his accomplishments including his deployment to Bosnia and Afghanistan.

3.  The applicant provides a list of supporting documents.

CONSIDERATION OF EVIDENCE:

1.  On 23 February 1994, the applicant enlisted in the ARNG.  He has served continuously since his initial enlistment.

2.  On 4 August 2004, the MNARNG issued orders 217-803 ordering him to full-time National Guard duty (FTNGD) in an AGR status effective 3 August 2004.

3.  On 16 June 2007, he was promoted to the rank of SSG/E6.

4.  His records contain two DA Forms 2166-8 (NCO Evaluation Report) for the rating periods covering January 2007 through November 2009.  One of these reports show his rater marked "fully capable" and the other "among the best."  His senior rater marked the "2" box for overall performance and potential on one of these evaluations and the "3" box for the other.

5.  He provides DA Forms 4856 (Developmental Counseling Form) reflecting that he was counseled on numerous occasions beginning January 2009.

	a.  On 20 January 2009, he received his initial counseling concerning the expectations of his rater/supervisor.  He acknowledged with his signature that he agreed with those expectations.

	b.  On 30 January 2009, and on several occasions thereafter, he received event-related counseling for leaving his work area to conduct personal business without proper authorization, failing initial and follow-up inspections, missing suspenses, failing to complete numerous actions, leaving the armory unsecure, and in spite of training and support showing difficulty in managing tasks associated with his job.

6.  He provides three memoranda dated in May 2010 recommending him for the AGR position of Readiness NCO.  These were from two senior NCOs and a captain.

7.  On 28 July 2010, he was again counseled on his duties and expectations. 

8.  A DA Form 2166-8 for the December 2009 through November 2010 rating period showing that his rater marked "fully capable" and his senior rater marked the "2" box for his overall performance and potential.

9.  In April and May 2011, he received counseling for failing to properly take care of Soldiers, proper communication procedures, missing suspenses, failure to properly complete a task, and receiving an unsatisfactory rating on an inspection.

10.  On 27 May 2011, SGM SDC initiated a recommendation that the applicant's AGR tour be concluded upon his expiration term of service of 1 July 2011.  SGM SDC stated he was making his recommendation based on the applicant's substandard duty performance and his repeated failure to perform at the competency and leadership level reasonably expected of a unit supply sergeant.  He stated documentary evidence was attached to support the recommendation for separation.  He also listed dates and reasons for several counseling sessions.  On the same date, the applicant acknowledged receipt of the notification.

11.  The applicant provides four memoranda of recommendation in support of his retention in the AGR program.  One shows the author (a first sergeant) was generally pleased with what he observed in the applicant's accomplishments from March 2007 through February 2009.  The other three memoranda positively presented his work performance.

12.  The applicant provides an Essential Health Division of Mental Health Master Individual Treatment Plan, dated 29 June 2011.  The plan shows he struggled with anxiety and depressive symptoms plus multiple areas of life stress including recent deployment, grief, marital issues, and financial concerns.

13.  On 1 July 2011, through counsel, he rebutted the proposal for involuntary separation from the AGR program.  His counsel stated that immediately preceding and during the applicant's deployment he experienced personal issues related to his mother dying and marital problems.  This began to affect his mental health.  During the deployment, he was able to suppress these issues and perform at a standard of "excellence."  After he returned, these issues resurfaced and started to spill over into his work.  On 14 April 2011, he finally reached out for help.  On 18 April 2011, the following Monday, his leadership found out that he requested assistance and subsequently served him with five counseling statements alleging substandard performance.

   a.  His counsel further summarized the applicant's duty performance and potential.  He quoted an executive officer as stating the applicant deserved a     6-month extension in the AGR program to see if his personal improvements would indeed improve his overall work performance.  His counsel also stated that a review of the allegations used to support the separation action did not support the action of separating a Soldier without misconduct.  He also provided a response to the counseling statements provided with the recommendation for separation.

	b.  He indicated the applicant had sought help for his mental health issues and was under a physician's care at that time.  He stated that by all accounts, the counseling and drug therapy were working.  His letters of support indicated his performance had greatly improved.

14.  On 3 August 2011, the applicant and SFC HN signed a "last chance agreement."

	a.  The agreement shows the applicant acknowledged that management would be able to prove by a preponderance of the evidence that he had repeatedly failed to perform at the competency and leadership level reasonably expected of a supply sergeant.  Both parties agreed that his behavior failed to meet the standards required of AGR personnel and was a basis for termination from the AGR program.  It shows the applicant and SGM SDC desired to stay the imposition of separation from the AGR program and allow the continued and unabated employment of the applicant for 1 year under specified conditions listed in the last chance agreement.

	b.  The applicant agreed to take a voluntary reduction to SGT/E5 during the period remaining in his duty position at the time.  Upon successful completion of the last chance agreement period, he would be returned to the rank/grade of SSG/E6.  Both parties acknowledged and agreed that any violation of a provision set forth in the conditions listed and shown to be true by a preponderance of the evidence would result in immediate processing for termination from the AGR program. 

15.  On 9 September 2011, Minnesota Joint Force Headquarters issued orders 252-1023 which voluntarily reduced him from the rank of SSG to sergeant (SGT) effective 3 August 2011.

16.  He received developmental counseling from August through October 2011.  On 20 November 2011, he was counseled for failure to perform and ensure critical training equipment was available for training.

17.  A DA Form 2166-8 for the December 2010 to November 2011 rating period shows his rater marked that he failed to fulfill his obligations and marked "marginal" for overall potential.  His senior rater marked the "4 (fair)" box for his overall performance and potential.
18.  He received additional developmental counseling in January 2012 indicating his performance was unsatisfactory in accordance with the last chance agreement.

19.  On 1 February 2012, SFC HN provided a written notification to the applicant indicating that he was being recommended for separation and he was given time to rebut or comment on the notification.

20.  On 6 March 2012, he rebutted the recommendation for separation by stating he had met all the requirements of the last chance agreement and individually addressed the developmental counseling statements given to him by SFC HN.  He further requested that he be reassigned to another unit, promoted back to SSG/E6, and placed back on the EPS roster.

21.  A DA Form 4187, 7 June 2012, shows that he requested a voluntary release from the AGR program in lieu of (involuntary) separation effective 7 September 2012.

22.  On 15 June 2012, the Adjutant General of Minnesota approved the applicant's voluntary release from the AGR program.

23.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty effective 7 September 2012 in accordance with his approved request.

24.  A memorandum addressed to the Minnesota National Guard IG, dated 
7 March 2013, shows he requested reinstatement in the AGR program.  He stated he had met all the requirements of the last chance agreement.  He stated that in February 2012 he was removed from his supply room position due to medical reasons.  He had gone through many struggles since his deployment to Afghanistan and he believed SFC HN was directly linked to his many difficulties.

25.  A DA Form 2166-8 for the December 2011 to November 2012 rating period shows his rater marked "fully capable" for overall potential.  His senior rater marked the "4 (fair)" box for his overall performance and potential.

26.  In the processing of this case, on 26 September 2013, an advisory opinion was obtained from the National Guard Bureau (NGB), Personnel Policy Division.  The advisory official recommended disapproval of the applicant's request.

	a.  The official stated the applicant deployed on 14 June 2009 and he was released from active duty on 1 July 2010.  On 2 July 2010, the applicant went back into the AGR program and was voluntarily separated on 7 September 2012.
	b.  An email from the MNARNG, dated 5 August 2013, states, "Applicant's request to be reinstated is no longer current.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions) and our annual Memorandum of Instruction, EPS boards are held yearly.  Applicant did not submit an enlisted promotion packet for consideration for FY [Fiscal Year] 
13 EPS cycle."

	c.  Upon consideration with NGB, Mobilization Policy Branch and a review of the applicant's packet, no substantial evidence to support reinstatement into the AGR program was found.  Additionally, a memorandum from the MNARNG, dated 27 May 2011, states the applicant had 15 days from the date of receipt of the recommendation for involuntary separation to rebut or comment on his proposed separation.  No evidence of a rebuttal was found in the Soldier's packet and the Soldier signed the enclosed DA Form 4187, dated 15 June 2012, showing he voluntarily separated in lieu of being involuntarily separated.

	d.  Army Regulation 135-18 (The AGR Program), paragraph 2-3 states in part, "Soldiers may submit applications for initial entry in the AGR program, or subsequent reentry in the AGR program following a break of 2 or more calendar days, in that status, to the authorities indicated below.  These authorities will announce the procedures and the files or records required for inclusion with the application.  The addressees will review the application and provide recommendations by endorsement.  Applications from Soldiers who do not qualify under Table 2-1, or who have a non-waivable disqualification under Table 2-3, or who fail to meet any additional requirements prescribed by Chief, NGB, will be disapproved and returned to the applicant.  Soldiers who qualify under Table 2-1, but have a waivable disqualification under Table 2-2, will attach a request for the appropriate waiver to their applications."

	e.  The Soldier provides letters of recommendation as well as copies of various emails; however, he has not provided convincing documents that would support his request.

27.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not submit a response.

28.  National Guard Regulation (NGR) 600-5 (The AGR Program Title 32, FTNGD), chapter 6 governs the separation of Soldiers serving on FTNGD in the AGR Program.  Section 6-5(a) states counseling or a letter of reprimand will be initiated by a commander or supervisor when an individual's degree of efficiency, manner of performance of duty, military conduct, or the commission of any derogatory act makes such action appropriate.  Normally, counseling statements or a letter of reprimand will be documented in an individual's military records according to Army Regulation 600-37 (Unfavorable Information) before initiating involuntary separation actions against an AGR member.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions, counsel's rebuttal to the recommendation for his separation from the AGR program, and the NGB advisory opinion were carefully considered.  However, these have not provided a sufficient basis to warrant relief in this case.

2.  The applicant was counseled numerous times regarding expectations for his duty performance.  Notwithstanding favorable recommendations from other Soldiers, his rater, who would have most closely worked with him on a day-to-day basis and accurately known what was expected of him, repeatedly found that he had failed to perform to the standard expected of a supply sergeant in the rank of SSG/E6.  Following an earlier recommendation for his involuntary separation, he was given an opportunity in the form of a "last chance agreement" to show his duty performance had improved to a level where he would meet specified conditions of that agreement.  However, notwithstanding his argument that he met all requirements set forth in the agreement, his rater determined he had not met the requirements/conditions of the agreement and recommended his separation from the AGR program.

3.  Evidence shows he had some personal difficulties and it appears his working relationship with SFC HN may not have been an optimal one.  However, his statement that he resigned his position in the AGR program under circumstances directly resulting from ongoing harassment and mistreatment by SFC HN is an insufficient basis to accept his contention that his request for voluntary release from the AGR program in lieu of an involuntary separation was done under duress.  The fact is, he requested voluntary release from the AGR program and his request was approved by the State Adjutant General.  He was released from the AGR program accordingly.

4.  He voluntarily requested reduction from the rank of SSG/E6 to SGT/E5 as part of the "last chance agreement" in which he acknowledged that management would be able to prove by a preponderance of the evidence that he had repeatedly failed to perform at the competency and leadership level reasonably expected of a supply sergeant.  Both parties also agreed that his behavior failed to meet the standards required of AGR personnel and was a basis for termination from the AGR program.  The agreement indicated he would regain the rank of SSG/E6 if he met all requirements of the agreement.  There is no evidence to show he met the requirements for reinstatement in the rank of SSG.  Therefore, there is no basis for reinstating his rank to SSG/E6, providing him pay and allowances associated with such a reinstatement, or placing him back into the EPS where he was listed before he was recommended for termination from the AGR program.

5.  As there is insufficient evidence to show the applicant was improperly released from the AGR program, it follows that there is an insufficient evidentiary basis for reinstatement to an AGR position in the MNARNG.

6.  In view of the foregoing, there is an insufficient evidentiary basis of error, inequity, or injustice to warrant granting the applicant's 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.
ABCMR Record of Proceedings (cont)                                         AR20130006985



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ABCMR Record of Proceedings (cont)                                         AR20130006985



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