RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20060010840 


	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.


x

	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 general under honorable conditions discharge be upgraded to honorable and that his Reenlistment Eligibility (RE) code of RE-3 be removed from his record.  He also requests, in effect, correction of his records to show he completed 20 years of qualifying service for retired pay at age 60.  

2.  The applicant states that his wife was diagnosed with stage three uterine cancer in 1991.  He applied to be excused from annual training through his chain of command but it was denied.  He then requested to be transferred to the Inactive National Guard (ING) and this request was also denied.  At the time of discharge, he had completed 19 years and 6 months of service.  He would like the opportunity to complete his service in the National Guard but he is medically disqualified.  He states that if he had been treated justly, he would still be in the Army National Guard.  

3.  The applicant provides a Memorandum for Record, dated 11 June 2006; his NGB Form 22 (Report of Separation and Record of Service); his NGB Form 23B (Army National Guard Retirement Points History Statement) prepared on 10 July 1992; his discharge orders from the New Mexico Army National Guard, dated 22 May 1992; and his discharge orders from the U.S. Army Reserve, dated 16 April 1996.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred 
on 1 June 1992.  The application submitted in this case is dated 18 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 served in the Regular Army from 7 October 1971 through 7 July 1979.  After a break in service, he enlisted in the California Army National Guard on 14 August 1980 and was discharged on 12 April 1983.  He enlisted in the New Mexico Army National Guard on 13 April 1983.

4.  His Army National Guard Retirement Points History Statement shows he served in the ING during the periods 1 May 1986 to 7 March 1987; 9 March 1987 to 11 June 1987; and 28 June 1987 to 31 January 1988.

5.  The applicant’s Army National Guard Retirement Points History Statement shows he completed 18 years, 6 months, and 4 days of qualifying service for retired pay age 60.

6.  The applicant’s discharge notification packet is not available.  State of New Mexico, Department of Military Affairs, Santa Fe, New Mexico Orders 100-12, dated 22 May 1992, discharged him from the Army National Guard on 1 June 1992 under the provisions of National Guard Regulation 600-200, paragraph     8-27g based on unsatisfactory participation with a general discharge.  He had completed a total of 19 years, 6 months, and 19 days of service for pay purposes.  He was transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve (IRR)) on 2 June 1992.

7.  Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri Orders D-04-636823, dated 16 April 1996, discharged the applicant from the U.S. Army Reserve on 16 April 1996 with an honorable characterization of service.

8.  National Guard Regulation 600-200, paragraph 8-27g states Soldiers are discharged from the State Army National Guard when a Soldier is determined to be an unsatisfactory participant per Army Regulation 135-91, chapter 4.  Commanders may recommend retention of Soldiers who have accrued 9 absences within one year period.  RE code 3 is listed as the reentry code to assign to Soldiers separated for unsatisfactory participation.  RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

9.  Army Regulation 135-91 (Service Obligations, Methods, Participation Requirements, and Enforcement Procedures) states, in part, that a Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled inactive duty training occur during a one-year period.  An unexcused absence from AT occurs when Soldiers fail to attend or complete the entire period of active duty.  This applies to a Soldier of a unit or U.S. Army Reserve Control Group.  

10.  Paragraph 6-4 of Army Regulation 135-91, in effect at the time, stated that an officer or enlisted Soldier who was obligated by contract who failed to participate in a satisfactory manner would be transferred to the IRR.
11.  Sections 12731 through 12739 of Title 10, United States Code, authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the Army National Guard on 1 June 1992 for unsatisfactory participation with a general discharge.  He was properly assigned an RE code of RE-3 in accordance with the governing regulation in effect at the time.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge notification packet and subsequent discharge from the Army National Guard was administratively correct and in conformance with applicable regulations.

3.  The applicant’s contentions were noted.  However, there is no evidence of record available to substantiate his claims, such as complaints to the Inspector General about his commander’s denying his request for transfer to the ING or his wife’s medical records.

4.  It appears the applicant’s Army National Guard chain of command determined that his overall military service did not meet the standards for an honorable discharge, appropriately characterized his service as general under honorable conditions, and transferred him to the IRR.  However, the applicant’s 1996 discharge from the U. S. Army Reserve was under fully honorable conditions.  With that honorable discharge, he should have been able to enlist in the U. S. Army Reserve to complete his 20 years of qualifying service.

5.  The applicant’s Army National Guard Retirement Points History Statement shows he had completed 18 years, 6 months and 4 days of qualifying service for retirement at the time of his discharge on 1 June 1992.  By law, the applicant is required to complete 20 years of qualifying service for retired pay at age 60.  Even if the applicant had not been able to enlist in the U. S. Army Reserve (either due to his wife’s or his own health) he provided no explanation of why he could not have earned retirement points through correspondence courses while he was in the IRR.

6.  There is no apparent error, injustice, or inequity on which to base recharacterization of his Army National Guard general discharge to honorable or to remove his RE code of RE-3.  At this point in time, there is insufficient evidence for the Board to substitute its judgment for that of the commander in regards to the character of his service.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 June 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 April 1995.  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

x_____x_____x______  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.




x__________
          CHAIRPERSON


INDEX

CASE ID
AR20060010840
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070621
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.0000
2.
100.0300
3.
135.0200
4.

5.

6.