RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 April 2007
      DOCKET NUMBER:  AR20060010048


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |                                  |     |Analyst              |

      The following members, a quorum, were present:

|     |                                  |     |Chairperson          |
|     |                                  |     |Member               |
|     |                                  |     |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 his records be corrected by upgrading his
discharge.

2.  The applicant states that he served 3 years, 9 months and 12 days of
his
4 year enlistment, and needs his general discharge upgraded to honorable so
that he can gain employment with the Idaho Department of Corrections.

3.  The applicant provides no additional evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 July 1988.  The application submitted in this case is dated
5 July 2006.

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 initially enlisted in the United States Army Reserve on
16 October 1984, for a period of 8 years.  On 19 December 1986, he enlisted
in the Army National Guard for a period of 5 years, 11 months and 26 days.

4.  The applicant was promoted to the pay grades of E-2 and E-3, on 20
August 1985 and 27 October 1985, respectively.

5.  On 19 December 1986, in conjunction with his enlistment in the Army
National Guard (ARNG), the applicant signed a Statement of Understanding of
Reserve Obligation and Responsibilities.  He acknowledging that he
understood that if he was not excused from scheduled training periods by
proper authority he would be considered absent without leave and charged
with an unexcused absence.  He further acknowledged that he understood that
if he accumulated nine or more unexcused absences within a 1-year period he
would be declared an unsatisfactory participant and would be considered for
separation from the ARNG and transferred to the Individual Ready Reserve
(IRR) for the remainder of his military service obligation.
6.  On 10 January 1988, the applicant was informed by the 351st Supply &
Service Company, California Army National Guard, San Luis Obispo,
California, that he had accumulated eight unexcused absences and was
advised of the consequences of receiving more than nine unexcused absences
within a 1-years period.  He was advised to take steps immediately to
improve his attendance.

7.  On 7 February 1988, the applicant was informed by the 351st Supply &
Service Company, California Army National Guard, San Luis Obispo,
California, that he had accumulated twelve unexcused absences within a 1-
year period, and was being considered for reduction in grade under the
provisions of National Guard Regulation (NGR) 600-200, Chapter 6, for
inefficiency (unauthorized absence from drill).

8.  On 9 February 1988, Orders 5-2, 351st Supply & Service Company,
California Army National Guard, San Luis Obispo, California, reduced the
applicant from pay grade E-3 to pay grade E-2, for inefficiency.

9.  Additional facts and circumstances concerning the applicant's
separation are not in his available records.  However, his NGB Form 22
(Report of Separation and Record of Service) shows the applicant was
discharged from the California ARNG on 28 July 1988 under the provisions of
NGR 600-200, paragraph 8-27g for being an unsatisfactory participant, and
issued a general discharge certificate (NGB Form 56a).  His NGB Form 22
also shows he had 1 year, 7 months and 10 of net service for the period 19
December 1986 to 28 July 1988, with total service of 3 years, 9 months and
13 days.

10.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) states that a
member is an unsatisfactory participant when he or she accrues nine or more
unexcused absences from scheduled drills occur during a 1 year period.

11.  National Guard Regulation 600-200 (Enlisted Personnel Management), in
effect at the time, sets forth the basic authority for the personnel
management of enlisted personnel of the Army National Guard (ARNG).
Chapter 8 of NGR 600-200 provides, in pertinent part, the separation of
enlisted personnel from the ARNG through discharge from the appropriate
state.  Unless concurrently discharged from his/her enlistment from the
Reserve of the Army, discharge is from the ARNG of the State only to become
a member of the Army Reserve.  Specific categories for separating members
under the provisions of this chapter include misconduct, unsatisfactory
participation, unsatisfactory performance, and failure to meet the
standards of AR 600-9 (Weight Control).  An enlisted member separated under
the provisions of this chapter will be furnished a certificate determined
solely on the member’s record of military service.  Normally a general
discharge (NGB Form 56a) will be awarded to a member discharged from the
ARNG only, who reverts to control of the Army Reserve, and whose military
records is not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  In December 1986, when the applicant enlisted in the ARNG, he
acknowledged that he understood the consequences of receiving more than
nine unexcused absences within a 1-year period.  In January 1988 he had
accumulated 8 unexcused absences and was again reminded of the
consequences, and was told to take immediate steps to improve his
attendance. However in February 1988, he accumulated four additional
unexcused absences which totaled twelve unexcused absences.  As a result he
was properly discharged with a general discharge and transferred to the
IRR.

3.  The applicant's desire to gain employment with the Idaho Department of
Corrections is insufficient justification for upgrading his discharge.

4.  The applicant's contention that he served 3 years, 9 months, and 12 day
of his four year contract is without merit.  The applicant enlisted the
ARNG for a period of 5 years, 11 months and 26 days (nearly 6 years), of
which he served 1 year,
7 month and 10 days, and was transferred the IRR to serve his remaining
service obligation.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 July 1988; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 July 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

___JV___  ___PM __  ___GP __  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.



                                  ________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010048                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070424                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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