BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140001065 


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 full reinstatement in the Illinois Army National Guard (ILARNG) effective 28 January 2011, with full back pay from the date of separation.  In the alternative, he requests the characterization of his discharge from the ILARNG be upgraded to honorable.

2.  The applicant defers any statements to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states:

	a.  The applicant enlisted in the ILARNG on 26 May 2006 and he deployed in September 2008.  In March 2009, he was command-referred for a mental health evaluation due to a concern that his prescribed medication for attention deficit disorder/attention deficit hyperactivity disorder (ADD/ADHD) was affecting his performance.  He informed his command that the medication he was prescribed may have been too strong and it was causing him motivation and memory issues.  The dosage was changed, which improved his overall health.

	b.  The applicant had a history of struggling with his Army Physical Fitness Tests (APFT).  After returning from Afghanistan, his unit was downsizing and command members were notified that APFT failures would have six months to pass their APFT re-test or they would be processed for administrative separation. He was unable to meet the physical requirements and subsequently was involuntarily administratively separated from the ILARNG.
	c.  Upon the applicant's APFT failure on 10 April 2010, he was required to be immediately enrolled into the Army Weight Control Management Program.  His unit failed to comply with Army Regulation 600-9 (The Army Weight Control Program).

	d.  The applicant's military service was exceptional up to the point of his involuntary administrative separation, as evidenced by his Army Good Conduct Medal, numerous war-time decorations, campaign ribbons, and a highly successful combat tour in Afghanistan.  

	e.  The applicant served honorably and with distinction and his discharge was unjust and erroneous because the unit commander, Headquarters, 2nd Battalion, 130th Infantry Regiment violated Army regulations and policy by:

* failing to properly enroll the applicant in the Army Weight Control 	Program, which severely limited his ability to overcome his deficiencies
* failing to ensure he was referred to a nutritionist for nutritional 	counseling and proper weight-loss counseling
* erroneously processing him for administrative separation under 	National Guard Regulation 600-200 for unsuitability
* erroneously and unjustly characterizing his service as general under 	honorable conditions

3.  Counsel provides a nine-page brief with 13 enclosures.

CONSIDERATION OF EVIDENCE:

1.  On 26 May 2006, the applicant enlisted in the ILARNG.  He completed           3 months and 10 days of active duty for training that was characterized as honorable, during the period 5 September through 14 December 2006.

2.  On 2 June 2007, he was flagged for failing the APFT.

3.  He entered active duty on 29 September 2008 and was deployed to Afghanistan from 6 December 2008 to 24 September 2009 with Company D, 
2nd Battalion, 130th Infantry Regiment.  He was released from active duty and returned to his ILARNG unit on 18 October 2009.  He completed 1 year and 20 days of active service that was characterized as honorable.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service shows he was awarded the:

* Afghanistan Campaign Medal with 1 bronze service star
* “NATO Afghanistan Service Medal”
* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Armed Forces Reserve Medal with "M" Device

4.  On 11 April 2010, he was formally counseled for failing to achieve a passing score on the record APFT in pushups, situps, and the 2-mile run.  He was advised he would be flagged until he passed an APFT.  He was advised that failure of two consecutive record APFTs would result in his separation from the ILARNG. 

5.  On 8 August 2010, he was formally counseled for failing to achieve a passing score on the diagnostic APFT in pushups, situps, and the 2-mile run.  He was advised that failure of two consecutive record APFTs would result in his separation from the ILARNG.

6.  On 3 October 2010, he was formally counseled for failing to achieve a passing score on the APFT in the 2-mile run.  He was advised that failure of two consecutive record APFTs would result in his separation from the ILARNG.

7.  On 7 November 2010, he was formally counseled for failing to achieve minimum passing standard on a record APFT as well as previous record and diagnostic tests.  He failed to obtain a passing score in situps and the 2-mile run.

8.  On 7 November 2010, his commander notified him he was initiating action to separate him from the ILARNG and transfer him the U.S. Army Reserve (USAR). His commander also advised him:

	a.  if he was separated the characterization of his service would be under honorable conditions;

	b.  the reason for the proposed separation action was his failure to meet Army physical fitness standards; and

	c.  he was encouraged to offer mitigating evidence for his continuation as a member of the ILARNG in good standing or other future intentions.

9.  On 7 November 2010, he acknowledged receipt of the notification of the proposed involuntary separation.  He indicated he did not desire to make a statement or offer further mitigating evidence.

10.  On 16 December 2010, his commander requested he be discharged for failing to meet Army physical fitness standards with a general discharge under honorable conditions.  The commander stated the platoon APFT binder was taken to Afghanistan and records of counseling for a 2007 record APFT failure were not available.  

11.  On 8 January 2011, his intermediate commander recommended approval of the request for discharge for unsatisfactory participation (APFT failure) with a characterization of service of under honorable conditions.

12.  The approval by the separation authority was not available for review.  

13.  On 28 January 2011, he was discharged from the ILARNG and transferred to the USAR Control Group (Annual Training).  He completed 4 years, 8 months, and 3 days of service in the ILARNG.

	a.  His NGB Form 22 (Report of Separation and Record of Service) shows the reason and authority as "NGR 600-200 - Unsuitability."  The characterization of his service is shown as under honorable conditions.

	b.  Department of Military Affairs, State of Illinois Orders 031-146, dated 
31 January 2011, show the authority for his discharge as "6-35c(6) of National Guard Regulation 600-200 dated 31 July 2009."  The characterization of his service is shown as under honorable conditions.

14.  His service medical records were not available for review.  There was no evidence of a medical limitation, such as a medical profile, that would have prevented him from fully participating in the APFT.

15.  On 27 November 2013, the ILARNG returned without action his request for reinstatement in the ILARNG, or as an alternative, an upgrade of his discharge to an honorable discharge.  The ILARNG stated:

* he was discharged for two consecutive failures of the AFPT
* his counsel's argument concerning Army Regulation 600-9 had no bearing on the fact that he failed to pass the required AFPT
* the request was returned without action because there was no substantiating documentation supporting his claim of a wrongful discharge
* there was no substantiating evidence to support his request for an upgrade of his discharge
* the characterization of service he received was consistent with the regulation and precedence established by the ILARNG

16.  U.S. Army Human Resources Command Orders D-05-411203, dated 
27 May 2014, discharged him from the USAR effective 27 May 2014.  The type of discharge is shown as honorable.

17.  National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in a number of functional areas including enlisted separations.

	a.  Paragraph 6-32 (Notification and Administrative Board Procedures) states all involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures.  See Army Regulation 135-178 (Enlisted Administrative Separations), chapter 3, section II (Notice under the Notification Procedure) and section III (Notice under the Administrative Board Procedure).  The notification and administrative board procedures contained in AR 135-178 will be used as required in this regulation.  All Soldiers with 6 or more years of total military service on the date of initiation of recommendation for separation, or if being considered for separation under other than honorable conditions have the right to an administrative separation board.

	b.  Paragraph 6-35 lists the reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army, the State Army National Guard only or both.  "Unsuitability" is not listed among the reasons for administrative separation from the ARNG.

	c.  Paragraph 6-35c(6).  Refer to Army Regulation 135-178, chapter 6, for the convenience of the Government separations based on other designated physical or mental condition.  Administrative separation board procedures per paragraph 6-32 are required.   

	d.  Paragraph 6-35f.  Refer to AR 135-178, chapter 9 for unsatisfactory performance discharges.  Counseling and rehabilitation are required.  Administrative separation board procedures per paragraph 6-32 are required.  Initiation of discharge proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT. 

18.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and USAR enlisted Soldiers for a variety of reasons.

	a.  Paragraph 2-4 states commanders must make reasonable efforts to identify Soldiers who are likely candidates for early separation and to improve their chances for retention through counseling, retraining, and rehabilitation before starting separation action.

	b.  Paragraph 2-9a states an honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  When a Soldier is discharged before expiration of the service obligation for a reason for which an honorable characterization is discretionary, the following considerations apply:

		(1)  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

		(2)  A Soldier will not necessarily be denied an honorable characterization solely by reason of a specific number of convictions by court-martial or actions under the Uniform Code of Military Justice (UCMJ), Article 15.

		(3)  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable characterization of service.

		(4)  An honorable characterization may be awarded when disqualifying entries in the Soldier’s military record are outweighed by subsequent honorable and faithful service over a greater period of time during the current term of service.

	c.  Paragraph 2-9b states if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record.

		(1)  When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

		(2)  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to Soldiers upon separation for expiration of
their service obligation.
19.  Chapter 9 (Unsatisfactory Performance) provides that a Soldier may be discharged when it is determined the Soldier is unqualified for further military service by reason of unsatisfactory performance.

	a.  Paragraph 9-2e states initiation of discharge proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT.

	b.  Paragraph 9-3 states discharge processing may not be initiated under this chapter until the Soldier has been formally counseled under the procedures prescribed by paragraph 2-4 of this regulation.

	c.  Paragraph 9-6 states the service of Soldiers discharged because of unsatisfactory performance will be characterized as honorable or general
(under honorable conditions) in accordance with chapter 2, section III, of this regulation.

20.  Army Regulation 600-9, then in effect, implemented guidance in Department of Defense (DOD) Instruction 1308.3 (DOD Physical Fitness and Body Fat Programs Procedures), which establishes a weight control program and guidance for body fat standards in the services.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant was unjustly and erroneously discharged because the provisions of Army Regulation 600-9 were not complied with.  However, the applicant was not discharged due to weight control, he was discharged due to his APFT failures.

2.  He was flagged as early as 2 June 2007 for APFT failure.  In the unit commander's request for discharge he indicated the 2007 Record APFT failure was not available for review.  

3.  Counsel contends the applicant was command-referred for a mental health evaluation due to his medication for ADD/ADHD in March 2009, after his June 2007 APFT failure.  However, there is no corroborating evidence in support of this contention that indicates it may have limited his ability to pass his APFT.

4.  He was formally counseled on 11 April, 8 August, 3 October, and 7 November 2010 concerning his APFT failures.  On each occasion he was advised that two consecutive record APFTs could result in him being processed for discharge.  Therefore, he was given ample time to improve his physical fitness in order to pass his APFT.
5.  Upon being notified he was being recommended for separation, he was given the opportunity and encouraged to offer mitigating evidence for his continuation as a member of the ILARNG.  He declined to make a statement or offer further mitigating evidence.

6.  He was properly and equitably discharged in accordance with regulations in effect.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.  Therefore, his discharge was not erroneous or unjust.

7.  In view of the above, there is no basis on which to reinstate the applicant in the ILARNG or grant him back pay.

8.  The memorandum, dated 7 November 2010, notifying him of separation processing cited National Guard Regulation 600-200, paragraph 6-35f and Army Regulation 135-98, chapter 9.  However, the NGB Form 22, dated 28 January 2011, shows the authority as National Guard Regulation 600-200, Unsuitability.  Paragraph 35 of National Guard Regulation 600-200 does not contain the reason "unsuitability" for separation and he was actually processed for separation under paragraph 6-35f for APFT failures.  Therefore, the authority and reason for discharge on his NGB 22 should be changed to "National Guard Regulation 600-200, paragraph 6-35f, APFT failure."

9.  The applicant's entire period of service in the ILARNG of 4 years, 8 months, and 3 days shows no indiscipline.  Although he was flagged for APFT failure on 
2 June 2007, he deployed and served a successful tour in Afghanistan from 
6 December 2008 to 24 September 2009.  He was awarded the Army Good Conduct Medal for his period of active service.  Both of his periods of active duty were characterized as honorable.  Therefore, it would be equitable in this case to upgrade the characterization of his service to honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  ___x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by amending his NGB Form 22 with an effective date of 
28 January 2011 as follows:

* item 23 (Authority and Reason):  change to read "National Guard Regulation 600-200, paragraph 35f, APFT failure"
* item 24 (Character of Service):  change to read "Honorable"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstatement in the ILARNG effective 28 January 2011 and back pay from date of separation.



      __________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)                                         AR20140001065



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ABCMR Record of Proceedings (cont)                                         AR20140001065



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