RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 December 2004
      DOCKET NUMBER:  AR2004106640


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Ronald J. Weaver              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the authority and reason for separation on
his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of
Service) be changed to read:  "Para 8-27k, NGR 600-200/Failure to obtain an
assignment to a unit vacancy."

2.  The applicant states that he was transferred to an inactive status
because he could not find a unit in the States before his conditional
release expired.  Since he was in an inactive status, he thought there was
no reason for attending [muster drills].

3.  The applicant provides an NGB Form 22 for the period ending 20 November
1979 and one for the period ending 1 May 1993; discharge orders dated
       12 February 1998; an Army National Guard Retirement Points History
Statement; and an enlistment contract dated 24 November 1993.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged injustice which
occurred on 20 November 1997.  The application submitted in this case is
dated 1 April 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant initially enlisted in the Reserve Components on 27
January 1989.  He enlisted in the Army National Guard (ARNG) on 24 November
1993 for 4 years.

4.  On 2 May 1995, the applicant requested transfer to the Inactive
National Guard (ING) for one year.  He was transferred to the ING effective
31 May 1995.

5.  On 20 November 1997, 3 days prior to his normal expiration term of
service (ETS), the applicant was honorably discharged from the ARNG and
transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement)
under the
provisions of National Guard Regulation 600-200, paragraph 8-27v, due to
failure to report to/for annual Inactive National Guard muster.  He was
given a reenlistment (RE) code of 3.

6.  National Guard Regulation 614-1 prescribes policies and procedures for
effective management of Soldiers in the ING and for transfer into and out
of the ING.  It states that the ING is an administrative category that
allows Soldiers in the ARNG to remain in the ARNG when for some reason they
are unable to participate satisfactorily in regularly scheduled training
assemblies and/or annual training.  All units that have ING Soldiers
assigned will conduct an annual ING muster assembly concurrently with a
regularly scheduled unit training assembly.  Attendance of all ING Soldiers
is mandatory unless out of State or country due to temporary employment,
residency, or missionary work.

7.  National Guard Regulation 600-200 (Enlisted Personnel Separations),
paragraph 8-3d states that ARNG Soldiers who have less than 3 months to
serve on their statutory or contractual obligation will be concurrently
discharged.   Paragraph 8-26x is the authority for discharging a Soldier
upon expiration of service obligation.

8.  In the processing of this case, an advisory opinion was obtained from
the Chief, Personnel Division, NGB.  That office noted the Puerto Rico ARNG
had retained the applicant in the ING until 3 days prior to his ETS date
and then discharged him with a reenlistment code of 3 rather than let his
enlistment expire and issue an RE code of 1.  That office recommended the
applicant's NGB Form 22 be amended to read "ETS" as the reason for
discharge with an RE code of 1.

9.  A copy of the advisory opinion was provided to the applicant for
response.  On 11 July 2004, he concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested transfer to the ING for one year and he was so
transferred effective 31 May 1995.  It appears he believed he was not
required to attend annual muster.  Nevertheless, he was retained in the ING
for an additional 18 months and discharged from the ARNG and transferred to
the USAR Control Group (Reinforcement) only 3 days short of his normal ETS.

2.  Since the Puerto Rico ARNG allowed the applicant to remain in the ING
until he was only 3 days of short of his contractual obligation (and not
having a statutory obligation), it would be equitable to show that he was
discharged from
the ARNG and the USAR under the provisions of National Guard Regulation
600-200, paragraph 8-26x upon the completion of his required service
obligation.

BOARD VOTE:

__ym____  __ml____  __rjw___  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that the NGB Form 22 for the period ending 20
November 1997 of the individual concerned be corrected:

     a.  in the heading by showing he was discharged from the Army National
Guard of Puerto Rico and as a Reserve of the Army;

     b.  in item 9 (Command to Which Transferred) to show "NA";

     c.  in item 23 to show "PARA 8-26x, NGR 600-200, COMPLETION OF
REQUIRED SERVICE OBLIGATION; and

     d.  in item 26 (Reenlistment Eligibility) to delete "EL-R RE-3" and to
show "RE-1."




            __Yolanda Maldonado___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106640                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041216                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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