IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080010592


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through a Member of Congress, in effect, a change to the separation code in his records.  

2.  The Congressional Inquiry provided states, in effect, that the applicant is seeking a change to his separation code and that additional evidence submitted by the applicant is being provided in order for his original application to be considered by the Board.  In his original application, the applicant stated, in effect, that the separation code in his records is incorrect, and that he had been told that he would be allowed to reenlist 1 year after his 2006 discharge from the United States Army Reserve (USAR).

3.  The applicant provides the following documents in support of his request:  Army Board for Correction of Military Records (ABCMR) Letter, dated 29 April 2008; Headquarters, 81st Regional Readiness Command Orders Number 
05-214-00196, dated 2 August 2005; Enlistment/Reenlistment Document 
(DD Form 4/1); and DD Form 214.


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.  The applicant’s original application was administratively closed on 29 April 2008, due to a lack of sufficient records.

3.  The applicant’s military record show he initially enlisted in and entered the United States Army Reserve (USAR) on 24 April 1995.  He completed his initial active duty training during the period from 20 August through 22 November 1995, and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

4.  On 5 February 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom, and entered active duty on 7 February 2003.

5.  On 13 May 2004, the applicant was honorably released from active duty (REFRAD) and returned to his USAR unit.  The separation document (DD Form 214) he was issued at this time shows he was REFRAD under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required active duty service.

6.  On 10 March 2006, Headquarters, 81st Regional Readiness Command issued Orders Number 06-069-00065, which directed the applicant’s discharge from the USAR, effective 10 April 2006, with a general, under honorable conditions discharge (GD).  These orders confirm that Army Regulation 
135-178 was the appropriate authority for the applicant’s discharge.

7.  The applicant’s discharge orders are void of a specific reason for discharge and his Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his discharge.


8.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Paragraph 2-9 prescribes the characterizations of service and it states in subparagraph (b) if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). A GD is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record.  When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A GD may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to Soldiers upon separation for expiration of their service obligation.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) implements Department of Defense policy for standardization of certain entries on the DD Form 214.  It is applicable to officers and enlisted Soldiers of the Active Army, Army National Guard/Army Guard of the United States, and the USAR who are issued a DD Form 214 upon separation from active duty in accordance with Army Regulation 635-5 unless otherwise stated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the SPD code he received upon his final discharge from the USAR in 2006, should be corrected was carefully considered. However, by regulation the issuance of an SPD code is only applicable to Soldiers of the Active Army, Army National Guard/Army National Guard of the United States, and the United States Army Reserve who are issued a DD Form 214, at the time of their REFRAD.

2.  The facts and circumstances surrounding the applicant's discharge processing are not on file; however, it does contain his official orders which show he was discharged under the provisions of Army Regulation 135-178 and received a GD.  These orders did not list a SPD code and absent any evidence of error or injustice, the orders carry a presumption of Government regularity in the separation process.  Lacking evidence to the contrary, there is an insufficient evidentiary basis to conclude the applicant's discharge was improper or inequitable and as a result, there is an insufficient evidentiary basis to support granting the requested relief. 

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x ____  ___x____  ___x____  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.




      _______ x_   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003428



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ABCMR Record of Proceedings (cont)                                       AR200800105092


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