RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 October 2005
      DOCKET NUMBER:  AR20050004733


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Hubert Fry                    |     |Member               |
|     |Mr. Robert Rogers                 |     |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, in effect, reinstatement into the Army National
Guard.

2.  The applicant states he was wrongly discharged for criminal indictment
for a Class C misdemeanor ($750 fine).

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 April 1988.  The application submitted in this case is dated
22 March 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 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 enlisted in the Army National Guard on 15 April 1986 for
a period of 8 years.  He was ordered to active duty on 8 August 1986 for
training in military occupational specialty 63B (light wheel vehicle
mechanic) and released from active duty on 30 January 1987.  He attained
the rank of private first class on 23 December 1987.

4.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, orders show the applicant
was discharged with a general discharge on 6 April 1988 under the
provisions of National Guard Regulation 600-200, paragraph 8-27g, as an
unsatisfactory participant.  He was transferred to the U.S. Army Reserve
(USAR) Control Group.  On 3 May 1994, the applicant was honorably
discharged from the USAR.
5.  National Guard Regulation 600-200 (Enlisted Personnel Management), in
effect at the time, set forth the basic authority for the personnel
management of enlisted personnel of the Army National Guard.  Paragraph 8-
27g of this regulation stated that a Soldier would be discharged from the
Army National Guard for unsatisfactory participation.  The regulation also
stated that the Soldiers would be notified of recommendations for
involuntary discharge and afforded a reasonable opportunity to provide a
written response for consideration by the separation authority.
Characterization of service would be in accordance with applicable State
codes.

6.  Chapter 4 of Army Regulation 135-91 (Army National Guard and Army
Reserve/Service Obligations, Methods of Fulfillment, Participation
Requirements, and Enforcement Procedures) states, in pertinent part, that a
member who fails to participate satisfactorily when he accrues in any 1
year period a total of 9 or more unexcused absences from scheduled unit
training assemblies.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was wrongly discharged for
criminal indictment for a Class C misdemeanor ($750 fine), there is no
evidence of record to support his contention.

2.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the entire discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service during his enlistment.  As a result,
there is no basis for granting the applicant's request for reinstatement
into the Army National Guard.

3.  Records show the applicant should have discovered the alleged injustice
now under consideration on 6 April 1988; therefore, the time for the
applicant to file a request for correction of any expired on 5 April 1991.
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

BE____  HF______  RR______  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.




            ___Barbara Ellis______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004733                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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