IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140008469 


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:

	a.  removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 8 June 1991, from his record;

	b.  restoration of his rank/pay grade to E-7;

	c.  removal of documentation relating to his reduction in rank/pay grade from E-6 to E-3;

	d.  removal of documentation relating to his separation from the Florida Army National Guard (FLARNG));

	e.  issuance of a Notice of Eligibility for Retired Pay at Age 60 (20-Year Letter); or

	f.  alternatively, an upgrade of the characterization of his FLARNG service to honorable. 

2.  The applicant states:

	a.  His nonjudicial punishment (NJP) and reduction board action from pay grade E-6 to E-3 were not authorized under Army regulations.


	b.  The separation action was unauthorized in that it circumvented the requirement for the Secretary of the Army to approve the separation of a Soldier with more than 18 years of service.

   c.  He relates – 

* he served in the U.S. Marine Corps (USMC) from September 1970 to June 1978
* he joined the USMC Reserve as he adjusted to civilian life, but he had an extremely hard time adjusting
* he served on active duty in the USMC Reserve in a full-time support program, but the money for that program ran out
* he did not want to return to being a civilian so he looked for active duty programs and found the FLARNG had quite a few openings
* he enlisted in the FLARNG and received training in the military occupational specialty (MOS) of his choice
* he made several applications and had outstanding qualifications but he never found an opportunity to return to active duty; he kept losing out to local FLARNG applicants
* it quickly became apparent that his 15 years of active duty experience in the USMC was hindering him from being selected 
* as a noncommissioned officer (NCO) who had not been promoted through the ARNG system he was not accepted by the senior NCOs and he was treated like an unwanted Soldier
* he was not made to feel welcome in the unit and he was not consulted on issues as a senior NCO should have been
* he was quickly disappointed and felt "Black Balled"
* he had been taught that a code of camaraderie existed between and among the services, but this was not what he experienced in the FLARNG
* he lost his motivation, was not included in the unit's mission, and he did not show up for drill anymore
* the actions they initiated were a direct reflection of how they felt about him
* he believed any complaint that he filed with his chain of command or the Inspector General would be futile because he was viewed as an outsider

3.  The applicant lists excerpts from Army Regulation 27-10 (Military Justice), Army Regulation 135-78 (Army National Guard and Army Reserve Enlisted Administrative Separations), and Army Regulation 600-8-19 (Enlisted Promotions and Reductions) as provided; however, he actually deferred submission of documents to counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records by, in effect:

* recharacterizing his FLARNG service from general under honorable conditions to honorable
* setting aside the NJP reducing him to pay grade E-6 and subsequently to pay grade E-3
* restoration of his rank/pay grade to E-7
* upgrading his separation and reenlistment codes
* issuing him a 20-year letter and allowing him to retire

2.  Counsel states the applicant admits he made a mistake by absenting himself from weekend drills without permission.  He asks the Board in deciding if his perceived misconduct really outweighs his overall record and particularly consider his Vietnam service, awards, and decorations.

	a.  Counsel specifically contends –

* a Soldier serving in pay grade E-7 cannot be reduced by a company grade NJP
* the reduction from pay grade E-6 to E-3 was improper because the prior NJP was illegal; the applicant was improperly notified and such action was not authorized by regulation
* a 20-Year Letter should be issued due to the command's inappropriate actions and the applicant's total years of good service
* in the alternative, the applicant’s separation from the FLARNG should be re-characterized to honorable

	b.  Counsel contends according to Army Regulation 135-178, paragraphs
1-11 and 1-12, the applicant's separation could only be authorized by the Secretary of the Army and that an administrative discharge board was required.

	c.  Counsel argues that the applicant was treated unfairly.  The unit treated him as an outsider unwanted Soldier.  He was not treated with the respect warranted by his rank and experience, thereby causing the applicant to lose his team player attitude and develop feelings of unworthiness.  These feelings were foreign to him in his prior experience in the USMC.  This led to his reasoning that he could not continue to attend weekend drills and essentially forced him out of the ARNG.

3.  Counsel provides copies of most of the applicant's service record documents and the regulation excerpts cited above.  
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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.  Prior to joining the FLARNG the applicant served approximately 13 years of active and 3 years of inactive service in the USMC and the USMC Reserve.  His first USMC enlistment included service in the Republic of Vietnam for which he was authorized the Vietnam Service Medal with one bronze service star.

3.  On 31 May 1988, the applicant enlisted in the FLARNG as a Reserve of the U.S. Army for a period of 5 years and in pay grade E-7.  He specifically enlisted for assignment to the 1265th Ordnance Maintenance Company and training in "MOS 76P40."

4.  A DA Form 2166-6 (Enlisted Evaluation Report) for the period May through November 1988 shows the applicant's chain of command at the 1265th Ordnance Maintenance Company favorably evaluated him.  He received 47 of a possible 50 points for professional competence and 34 of a possible 35 points for professional standards.  It was noted that he needed to attend the Advanced NCO course and MOS school; nevertheless, he was recommended for promotion with his peers.

5.  He successfully completed the Hawk Missile Firing Section Repairer (MOS 27H) from 22 June 1989 to 7 February 1990.

6.  A DA Form 2166-7 NCO Evaluation Report for the period from October 1989 through September 1990 indicated he was still at the 1265th Ordnance Company.  He was a Hawk Launcher/Transporter System Maintenance supervisor.  His rater marked him fully successful except for an "Excellent" in competence and indicated his potential as "Fully Capable."  The senior rater noted that the applicant's drill attendance was not up to standards but still marked his performance as third block "Successful" and his potential as third block "Superior."
7.  The only available ARNG Retirement Points History Statement shows the last Retirement Year Ending (RYE) for which the applicant received credit ended on 20 October 1990.  At that time he had 19 years, 9 months, and 28 days of creditable service for retirement.

8.  A letter, dated 17 December 1990, was sent to the applicant by certified mail reminding him that through November 1990, he had accumulated 8 unexcused absences in the past year and that 9 unexcused absences were considered unsatisfactory participation and a basis for discharge from the ARNG and transfer to the Individual Ready Reserve.

9.  The DA Form 2627 that is in his record and was submitted by the applicant in support of this request states the company commander was considering imposing NJP against him for missing drills in June, November, and December.  That form is incomplete, undated, and unsigned.

10.  Orders, dated 27 June 1991, show the Commander, 164th Air Defense Artillery Brigade administratively reduced the applicant from pay grade E-7 to pay grade E-6 for inefficiency, effective this date. 

11.  A memorandum, dated 16 August 1991, informed the applicant the battalion commander intended to reduce him from pay grade E-6 to E-5 for inefficiency.  He was also notified that if he requested a reduction board it would be convened within 30 days.  The applicant requested a board be held.

12.  A Enlisted Reduction Board was held on 12 November 1991.  The board recommended the applicant be reduced to pay grade E-3 and the issuance of a general discharge.  The acting battalion commander approved the board recommendations on 12 November 1991.

13.  On 10 December 1991, the company commander requested the applicant be discharged from the FLARNG for unsatisfactory participation.  The battalion commander approved the recommendation and the FLARNG Adjutant General directed separation and the issuance of a General Discharge Certificate.

14.  On 27 January 1992, the applicant was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Reinforcement).

15.  On 12 December 1995, he was honorably discharged from the USAR.

16.  Prior to joining the FLARNG on 31 May 1988 the applicant – 

* served on active duty in the USMC from 21 September 1970 through 27 June 1978
* had a brief break in service from 29 June through 20 October 1978
* served in an inactive duty status in the USMC Reserve from 21 October 1978 through 6 June 1981
* served in an active duty status in the USMC Reserve from 7 June 1981 through 6 May 1988
* had a break in service from 7 May to 30 May 1988

17.  The applicant turned 60 years of age on 8 April 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend the applicant was treated unfairly because he was not allowed to reach 20 years of satisfactory service and qualify for pay at age 60.  They also contend the reductions in rank were specifically improper because the applicant was reduced in rank from pay grade E-7, due to an NJP by a company grade officer.

2.  The NJP was not improper because it never happened.  The DD Form 2627 submitted with the application was not even signed.  The applicant was administratively reduced for inefficiency.  

3.  The only available Army National Guard History Statement shows the last RY for which the applicant received credit ended on 20 October 1990.  At that time he had 19 years, 9 months, and 28 days of creditable service for retirement.  By about-mid December he had already missed 8 drills and been informed that 9 missed drills were basis for removal.  But, he was only 2 months and 2 days shy of meeting his 20 creditable years for a reserve retirement.

4.  The applicant did not like the way he was treated during his time as a drilling member of the FLARNG, but it must be remembered that he was an experienced NCO who was not showing up for drills.  It appears his reductions were justified and there is insufficient justification to recommend removal of those FLARNG documents from his record.

5.  He should be awarded a 20-Year letter, transferred to the retired list in pay grade E-3, and granted retired pay at age 60.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

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 Department of the Army records of the individual concerned be corrected by replacing sufficient retirement points to give him a 20th creditable years for retirement and placing him on the Retired List in pay grade E-3 and paying him retired pay effective at age 60. 

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 expunging the FLARNG documents related to reductions in rank and separation from the FLARNG.  



      _______ _   _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)                                         AR20140008469



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ABCMR Record of Proceedings (cont)                                         AR20140008469



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