IN THE CASE OF:	  

		BOARD DATE:	       21 August 2008

		DOCKET NUMBER:  AR20080010634 


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 reconsideration of his denial for correction of his records to show that he was not dismissed from the U.S. Army, but instead resigned from the U.S. Army.

2.  The applicant states, in effect, that he requests reconsideration based on his prior honorable service in the Regular Army and in the Louisiana Army National Guard (LAARNG), and because the use of "presumption of regularity" was used incorrectly in the Board's prior decision.  The Board presumed regularity in the issuance of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) covering his final period of service, yet there is no evidence he was ever issued a DD Form 214 because he was on excess leave at the time of his dismissal.

3.  The applicant provides a self-authored statement, dated 21 May 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080000728, on 1 May 2008.  In this decision, the Board determined that there was no evidence in the official record and the applicant did not provide sufficient evidence to support his claim that he resigned his commission in the U.S. Army in the summer of 1985, prior to his conviction by general court-martial.

2.  The evidence of record shows the applicant had prior U.S. Army Reserve (USAR), Regular Army (RA), and Louisiana Army National Guard (LAARNG) service.  He was issued prior discharge documents.  His last period of service began on 16 May 1982, when he was appointed and entered active duty as a RA commissioned officer in the grade of second lieutenant.  He was arraigned and tried before a general court-martial on 19 December 1986.  He was found guilty of 2 specifications of making false official statements and conduct unbecoming an officer and a gentlemen.  He was sentenced to be dismissed from the Service. He was placed in an excess leave status pending a final decision on his discharge.  His sentence was affirmed by the U.S. Army Court of Military Review and his dismissal was duly executed on 19 December 1986.  For unknown reasons, a DD Form 214 covering the applicant’s last period of service was not provided to him and the official record did not contain a copy of the DD Form 214.  The National Personnel Records Center, St. Louis, issued the applicant a NA Form 13038 (Certification of Military Service) in lieu of the missing DD Form 214.  This document shows that he was a member of the RA from 16 May 1982 through 19 December 1986 and that his service was terminated by dismissal. 

3.  The applicant provides self-authored arguments, dated 21 May 2008, as new evidence in his case.  He indicates that he is disappointed in the Board's final decision and requests reconsideration based on his prior honorable service in the Regular Army and the LAARNG.  He also requests reconsideration based on the Board's incorrect use of the "presumption of regularity" in the issuance of a DD Form 214 covering his last period of active duty.  Paragraph 4 of the Board's previous decision (ABCMR Docket Number AR20080000728), states in pertinent part "This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.”  In this instance, the "presumption of regularity" is based on Army Regulation 635-5, Chapter 1 (General), which prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  Therefore, in the absence of evidence to the contrary, it is concluded that the applicant was issued a DD Form 214, at the time of his dismissal from the Service and that it correctly documented the applicant's military service during the period of service, including the authority and type of separation.

4.  The applicant contends in his new argument that the Board could not have issued him a DD Form 214 at the time of his dismissal because his court-martial was not affirmed until a year after he was placed in an excess leave status.  The 




applicant wants to know where the DD Form 214 was sent and to whom it was sent.  Without this information, then a presumption of regularity cannot be presumed.  Since he had many years of honorable service, he requests the benefit of the doubt be given to him, based on these new arguments.  He contends that he has clearly provided substantial creditable evidence to rebut the presumption that he was issued a DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided new arguments which were not considered in the Board's prior decision.

2.  The arguments provided by the applicant are not related to his central request that his official record be changed to show he resigned his commission from the U.S. Army.  His prior honorable service in the USAR, RA, and LAARNG is noted; however, this service does not provide an evidentiary basis to change his final period of service to show that he resigned from the U.S. Army.

3.  In order to support his case, the applicant must provide substantive evidence showing that he resigned his commission in the U.S. Army and that the Army erred in his general court-martial and resulting sentence of dismissal.  The applicant has not provided any evidence to support his contentions.  All his contentions regarding the issuance of a DD Form 214 covering his final period of active duty are noted.  However, again, because a DD Form 214 may have gone missing from his official record, does not relate to the facts and circumstances leading to his dismissal from the Army. 

4.  Given the above, the applicant has not provided any new evidence that would warrant a change the Board's previous decision.

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 to amend the decision of the ABCMR set forth in Docket Number ARAR20080000728, dated 1 May 2008.




      _______ _ 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)                                         AR20080010634



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ABCMR Record of Proceedings (cont)                                         AR20080010634



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