RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 6 March 2007
DOCKET NUMBER: AR20060011133
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:
Mr. James Anderholm
Chairperson
Mr. Scott Faught
Member
Mr. Roland Venable
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 general discharge from the U.S. Army Reserve (USAR) be upgraded to honorable.
2. The applicant states, in effect, that after he was honorably discharged from the Florida Army National Guard he was treated unjustly by the USAR. He contends that there was a lack of communication and that he was not advised to attend any musters because the unit was full at the time.
3. The applicant provides USAR discharge orders, dated 26 April 1965; an Honorable Discharge Certificate from the Army National Guard; a DD Form 4 (Enlistment Record), dated 19 September 1961; a DD Form 214 (Report of Transfer or Discharge) for the period ending 12 August 1962; a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); and two letters, dated 26 July 2006 and 30 November 2006, from a Member of Congress.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 26 April 1965. The application submitted in this case is dated 19 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 applicants failure to timely file.
3. The applicant enlisted in the Florida Army National Guard on 19 September 1961. He was ordered to active duty on 13 February 1962 for training and was released from active duty on 12 August 1962. On 18 September 1964, the applicant was honorably discharged from the Florida Army National Guard and. transferred to the USAR to complete his remaining service obligation of 3 years.
4. The facts and circumstances surrounding the applicants USAR discharge are not contained in the available records. However, discharge orders show the applicant was discharged with a general discharge from the USAR on 26 April 1965 under the provisions of Army Regulation 135-178, paragraph 9l(2)(b), for misconduct (failed or refused to reply to official correspondence).
5. Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Paragraph 9l(2)(b) of the regulation, in effect at the time, stated that enlisted members of the Army Reserve would be discharged for misconduct when the reservist failed or refused to reply to official correspondence. The regulation stated that a reservist would receive a final discharge predicated upon the character of service performed while serving in the Active Army and upon his conduct and the character of his participation in reserve training, if participation was required.
6. Army Regulation 135-178 provides, in pertinent part, that the honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty
for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's
2. Records show the applicant should have discovered the alleged injustice now under consideration on 26 April 1965; therefore, the time for the applicant to file a request for correction of any injustice expired on 25 April 1968. 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
JA_____ ___SF___ __RV____ 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.
__James Anderholm_____
CHAIRPERSON
INDEX
CASE ID
AR20060011133
SUFFIX
RECON
DATE BOARDED
20070306
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19650426
DISCHARGE AUTHORITY
AR 135-178
DISCHARGE REASON
Misconduct (failed or refused to reply to official correspondence)
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
144.0000
2.
3.
4.
5.
6.
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