IN THE CASE OF:	  

		BOARD DATE:	       27 January 2009

		DOCKET NUMBER:  AR20080017027 


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 his general discharge from the Indiana Army National Guard be upgraded to honorable.

2.  The applicant states that his place of employment in Green Castle, Indiana, closed down and he was transferred to Pennsylvania.  He contends that he requested a transfer to another artillery unit in Pennsylvania; however, he was told the closest artillery unit to him was more than 60 miles from his house.

3.  The applicant provides a National Guard Bureau Form 22 (Report of Separation and Record of Service), discharge orders, a DD Form 214 (Report of Transfer or Discharge), and a General Discharge Certificate.

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.  Having prior service in the U.S. Navy, the applicant enlisted in the Indiana Army National Guard on 5 November 1982 for a period of 1 year.  He extended his enlistment in the Indiana Army National Guard on 17 October 1983 for a period of 6 years.

3.  Records show that on 24 January 1987 an interstate transfer request was initiated due to the applicant’s place of employment in Indiana moving to Pennsylvania.  Records show the applicant called his unit to notify them that he was not going to transfer to the Pennsylvania Army National Guard because he found out that his place of employment was going to transfer him to Kentucky.  The applicant indicated that he would come in and see about transferring to the inactive National Guard.  However, there was no subsequent contact with the applicant.

4.  Records show the applicant accrued 9 periods of being absent without leave.

5.  On 17 July 1987, the applicant was terminated from the Bonus Entitlement Program due to his pending discharge and involuntary transfer to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)).

6.  On 19 July 1987, the applicant was reduced to E-3.  On 20 July 1987, he was reduced to E-2.

7.  On 24 July 1987, a request for discharge and involuntary transfer to the USAR Control Group (IRR) for unsatisfactory participation was initiated.

8.  On 20 November 1987, the applicant’s commanding officer recommended that he be discharged from the Indiana Army National Guard and transferred to the "Inactive Ready Reserve."

9.  Discharge orders show the applicant was discharged with a general discharge on 8 January 1988 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27g, as an unsatisfactory participant.  He was transferred to the USAR Control Group (Reinforcement).

10.  National Guard Regulation 600-200, in effect at the time, set forth the basic authority for the personnel management of enlisted personnel of the Army National Guard.  Paragraph 8-27g of this regulation stated that a Soldier would be discharged from the Army National Guard for unsatisfactory participation.  The regulation also stated that the Soldiers would be notified of recommendations for involuntary discharge and afforded a reasonable opportunity to provide a written response for consideration by the separation authority.  Characterization of service would be in accordance with applicable State codes.
11.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states, in pertinent part, that enlisted Soldiers who are obligated by statute or contract will be charged with unsatisfactory participation when, without proper authority, they accrue in any 1-year period a total of 9 or more unexcused absences from scheduled drills.

12.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was discharged under honorable conditions (a general discharge) from the Indiana Army National Guard for accruing 9 unexcused absences from scheduled drills within a 1-year period.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20080017027



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ABCMR Record of Proceedings (cont)                                         AR20080017027



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