RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 22 December 2005
DOCKET NUMBER: AR20050002132
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 |
| |Mr. W. W. Osborn. Jr. | |Analyst |
The following members, a quorum, were present:
| |Mr. Ted S. Kanamine | |Chairperson |
| |Mr. Robert L. Duecaster | |Member |
| |Ms. Jeanette B. McPherson | |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 reason for his discharge be changed.
2. The applicant states, in effect, that the reason for his discharge
should be changed.
3. The applicant provides no substantiating documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred on 1 October 1996. The application submitted in this case
is dated 27 January 2005.
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 limitations 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 entered the Army National Guard on 16 February 1993 and
was discharged from the Virginia Army National Guard and as a Reserve of
the Army on 1 October 1996. His NGB Form 22 (Report of Separation and
Record of Service) shows that he had 3 years, 7 months, and 16 days of
service and 5 years, 10 months, and 29 days of prior Reserve Component
service.
4. His NGB Form 22 and his discharge orders both show that he was
separated with an honorable discharge due to medical unfitness under the
provisions of National Guard Regulation 600-200 (Enlisted Personnel
Management), paragraph 8-26y.
5. National Guard Regulation 600-200, paragraph 8-26y provides that a
commander who suspects a Soldier may not be physically qualified for
retention will direct a medical evaluation. If the individual is found not
physically qualified, a non-retention recommendation will be submitted to
the State Adjutants General.
DISCUSSION AND CONCLUSIONS:
1. The applicant submitted no information to justify or explain the
requested relief.
2. In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.
3. In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust. The applicant has failed to
submit evidence that would satisfy this requirement
4. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 September 1999. The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__TSK___ _JBM___ __RLD __ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law. Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.
_ Ted S. Kanamine________
CHAIRPERSON
INDEX
|CASE ID |AR20050002132 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |2005/12/27 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |110.02 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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