RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080000310 


	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.




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 general under honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states that he served his country honorably, but his mother had a serious illness (cancer).  She was dying, and he had to spend most of his time with her.  Being with her became his first priority.  He was forced to choose her or the military.  He had to choose his mother.

3.  The applicant states that he was on drill one day when he received word from the Red Cross that his mother was in the hospital and had little time to live.  An officer named Captain S___ offered his assistance and was given the OK to drive the applicant from Virginia to Pennsylvania to be with his mother.  His mother had been given less than 3 months to live.  He had to be with her because she needed him to help her as much as possible.  He explained the situation to his platoon sergeant.  His platoon sergeant agreed that he should be released on good terms for the reason that his mother was dying and signed him out honorably.  He was young at the time and did not realize there was a mistake on his “DD 214.”  Had he realized that, he would have changed it earlier.  He is attaching a copy of his mother’s “death certificate.”

4.  The applicant provides a letter from his Member of Congress, dated             12 September 2007; a separate letter with the names of the two individuals who were witnesses to his being released from the military to be with his mother; his mother’s obituary in an undated, unidentified newspaper article; and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Most of the applicant’s Army National Guard (ARNG) records are not available.

3.  The applicant enlisted in the ARNG on 26 September 1988.  

4.  The applicant provided a copy of his mother’s newspaper obituary.  The newspaper is not dated and the date of his mother’s death is not listed (only noted as “yesterday”).  However, three other death notices in this newspaper list dates of death of 31 July 1991 (two) and 1 August 1991 (one).  This newspaper section also contained the obituary of Yusuf I___, noted as one of Egypt’s     best-known playwrights, who also died “yesterday.”  Other sources revealed that Yusuf I___ died on 1 August 1991.  The applicant’s mother’s obituary noted that she had one daughter and two sons.

5.  On 10 August 1991, the applicant extended his ARNG enlistment for one year.

6.  The applicant’s NGB Form 22 shows he was discharged from the ARNG on 16 December 1991 and transferred to the U. S. Army Reserve Control Group (Annual Training) under the provisions of National Guard Regulation 600-200, paragraph 8-27G for unsatisfactory performance with a characterization of service of under honorable conditions.

7.  Around November 1993, the applicant transferred to a troop program unit.  His ARNG discharge orders, which showed he was discharged from the ARNG with an under honorable conditions type of discharge, was filed with his U. S. Army Reserve records.

8.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states enlisted Soldiers who are obligated by statute or contract will be charged with unsatisfactory participation when, without proper authority, they accrue in any     one-year period a total of nine or more unexcused absences from scheduled drills.  

9.  National Guard Regulation 600-200 (Enlisted Personnel Management) states an honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 8-27 of the regulation in effect at the time listed reasons for discharge from the State not otherwise listed in this regulation or Army Regulation 135-178.  Characterization of service would be in accordance with applicable State codes.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that his platoon sergeant agreed that he should be released on good terms for the reason that his mother was dying and signed him out honorably.  However, the evidence provided by the applicant indicates that his mother died on 1 August 1991.  The evidence of record shows that the applicant extended his ARNG enlistment on 10 August 1991.  

2.  The evidence of record does not support the applicant’s contentions.  It is presumed that the characterization of his service as general under honorable conditions was in accordance with the applicable State code and there appears to be no basis which would warrant upgrading his discharge from the ARNG.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __jgh___  __ksj___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      __           PHM_       __
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000310


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508