IN THE CASE OF:	  

	BOARD DATE:	  9 December 2008

	DOCKET NUMBER:  AR20080014022 


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 upgrade of his discharge under other than honorable conditions to honorable.

2.  The applicant states that he had a spotless record in the Army National Guard.  No misconduct occurred that called for other than an honorable discharge.  He admits to making a mistake by taking some military clothing that did not belong to him.  He has always been a model citizen and has no criminal record.   He has worked for 9 years for the city of Phoenix in the aviation department, where integrity, safety and security are very important.  He also states that he has 15 years in the Army National Guard and wants to continue to serve and complete his career.

3.  The applicant provides copies of his enlistment contracts, Report of Separation from Active Duty (DD Form 214), promotion orders, Report of Separation and Record of Service (NGB Form 22), discharge orders, Army National Guard Current Annual Statement, and Section 35 (Record of Assignments) from his Personnel Qualification Record, Part II (DA Form 2-1).

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 10 January 1975, the applicant enlisted in the Regular Army for 3 years.   He completed his initial training and was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  

3.  While on active duty, the applicant served a 13 month tour of duty in the Republic of Korea and attained the rank of specialist four, pay grade E-4.

4.  On 9 January 1978, the applicant was released from active duty and transferred to the USAR Control Group (Reinforcement).  He had completed 
3 years of creditable active duty service.

5.  On 17 January 1978, the applicant enlisted in the Arizona Army National Guard in the rank of specialist four.  He was assigned for duty as a materiel storage specialist with the 222nd General Support Company, in Phoenix, Arizona.  On 15 September 1978, the applicant was reassigned for duty as an equipment storage foreman, pay grade E-5.

6.  During the period from 1 September to 30 November 1980, the applicant was assigned for duty as a subsistence supply specialist with the 167th Supply and Service Company, Phoenix, Arizona.

7.  On 1 December 1980, the applicant was assigned for duty as a subsistence noncommissioned officer with Headquarters and Headquarters Company, 158th Supply and Service Battalion.

8.  On 1 June 1981, the applicant was promoted to staff sergeant, pay grade E-6 and was subsequently assigned for duty as a materiel storage supervisor with the State Headquarters and Headquarters Detachment, Phoenix, Arizona.

9.  Orders 140-26, State of Arizona, dated 4 August 1989, discharged the applicant under the provisions of National Guard Regulation 600-200, paragraph 8-26q(3).  His NGB Form 22 shows that he had completed 11 years, 6 months, and 12 days of creditable service in the Arizona Army National Guard during this period and had completed a total of 14 years, 6 months, and 19 days of creditable service for retired pay.  The reason for his discharge was acts or patterns of misconduct.  His character of service was under other than honorable conditions

10.  The applicant’s administrative discharge packet is not available for review.

11.  National Guard Regulation 600-200 (Enlisted Personnel Management), chapter 8 and Army Regulation 135-178 (Separation of Enlisted Personnel), chapter 7 provide for the separation of enlisted personnel of the Army Reserve and the Army National Guard for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, commission of a serious offense, and convictions by civil authorities.  Paragraph 8-26 covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG. Paragraph 8-26q(3) pertains to misconduct that includes abuse of illegal drugs.
Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition (Army Regulation 40-501) is not the direct or substantial contributing cause of his or her misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

DISCUSSION AND CONCLUSIONS:

1.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

2.  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 the aforementioned requirement.

3.  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.



	__________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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080014022



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