IN THE CASE OF:	  

		BOARD DATE:	        06 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013859 


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 that the narrative reason for separation that is currently reflected on his Certificate of Release or Discharge from Active Duty (DD Form 214) be changed.

2.  The applicant states that the reasons for his separation were committed when he was young.  He states that he did not fully grasp the gravity of the decisions he was making.  He states that he has come to realize that being in the Army and soldiering is what he was born to do; that he is finally on the right track; and that he is doing well in his career progression.  He states that he has recently been promoted to the rank of sergeant (E-5) and that he is trying to get his life together.  He states that he is trying to obtain an Active Guard Reserve position in the Maryland Army National Guard and that he has been disqualified until his situation is corrected.  He states that he is only asking for another chance to prove that he can be an invaluable member to the service that he has grown to love so much.  He concludes by stating that being a Soldier is all he really knows how to do and all he really ever wanted.

3.  The applicant provides no additional documentation in support of his application.

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.  On 26 May 1989, the applicant enlisted in the Maryland Army National Guard (MDARNG) for 8 years, in the pay grade of E-1.  He enlisted in the Regular Army on 1 October 1991 and he successfully completed his training as a cannon crewmember.

3.  The available records show that the applicant was furnished a locally imposed bar to reenlistment on 14 April 1993.  According to the Bar to Reenlistment Certificate (DA Form 4126-R), nonjudicial punishment was imposed against the applicant on 24 March 1993, for failure to remain at his appointed place of duty; and on 9 December 1992, for stealing $46.38 worth of gasoline.

4.  The DA Form 4126-R also shows that the applicant was counseled on 30 November 1993, for uttering a dishonored check in the amount of $393.50; on 11 March 1993, for leaving his guard post; on 15 March 1993, for failure to follow instructions; and on 9 March 1993, for disobeying a lawful order.

5.  On 26 April 1993, the applicant submitted a personnel action requesting early separation under the provision of Army Regulation 635-200, chapter 16-5b, due to a locally imposed bar to reenlistment that he perceived he would be unable to overcome.  At the time that he submitted the personnel action, he indicated that he understood that once he departed, he would be unable to enlist in the Army at a later date.

6.  The appropriate authority approved the request for discharge on 12 May 1993.  Accordingly, on 2 June 1993, the applicant was honorably released from active duty (REFRAD), under the provisions of Army Regulation 635-200, chapter 16-5b, due to a locally imposed bar to reenlistment.

7.  The DD Form 214 that the applicant was furnished at the time of his REFRAD shows his narrative reason for separation was due to a locally imposed bar to reenlistment.

8.  The available records indicate that the applicant is currently a member of the Army National Guard.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.  Incident to the request the member must state that he understands that later reenlistment is not permitted.

10.  Army Regulation 635-5 is the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 will be prepared to reflect an individual’s service as it exists at the time of his discharge or REFRAD.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show, 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.

2.  The applicant’s records show that he was furnished a locally imposed bar to reenlistment as a result of his acts of indiscipline.  Once he received the bar to reenlistment, he submitted a request for early separation under the provisions of Army Regulation 635-200, chapter 16-5b, and his request was approved.  

3.  His DD Form 214 properly reflects his narrative reason for separation and the fact that he now has a desire to obtain a position in the Active Guard Reserve is not a basis for changing his narrative reason for separation as it is correct as currently reflected.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

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.



      ________XXX______________
               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)                                         AR20080013859



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013859



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1