IN THE CASE OF:	  

		BOARD DATE:	  21 January 2009

		DOCKET NUMBER:  AR20080017203 


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, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, he was told he could upgrade his discharge.  

3.  The applicant provides his active duty separation document (DD Form 214) and Army National Guard (ARNG) separation document (NGB Form 22) 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.  The applicant's record shows that on 24 February 1979, he enlisted in the ARNG for 6 years.  He entered active duty to complete his initial active duty training (IADT) on 31 May 1979.  He completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Benning, Georgia. Upon successful completion of AIT on 29 August 1979, he was released from active duty (REFRAD) and returned to his ARNG unit.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  On 4 September 1979, the applicant enlisted in the United States Army Reserve (USAR) in the ARNG/Reserve Officer Training Corps (ROTC) Simultaneous Membership Program (SMP) as a cadet.  

4.  On 22 May 1981, the applicant was disenrolled from the ROTC program and reverted to his ARNG enlisted status.  

5.  On 6 February 1982, the applicant was informed  by his unit commander that based on his being charged with nine unexcused absences within a one year period, he was being declared an unsatisfactory participant and was being recommended for separation due to misconduct under the provisions of 
Army Regulation 135-178 (ARNG and Army Reserve - Enlisted Administrative Separations).   

6.  The complete separation packet containing all the facts and circumstances surrounding the applicant's discharge processing is not on file.  The record does contain Orders 103-17, dated 26 May 1982, issued by the Commonwealth of Virginia, Department of Military Affairs, Adjutant General's Office, which authorized the applicant's discharge from the ARNG, effective 26 May 1982, and that directed he receive a GD and be transferred to the United States Army Reserve (USAR) Control Group (Annual Training), St. Louis, MO.  It also contains a properly constituted NGB Form 22 that confirms he was discharged from the ARNG with a GD on 26 May 1982, in the rank of private/E-2 (PV2), after completing a total of 3 years, 3 months, and 3 days of military service this period.

7.  The applicant's record also contains Orders D-02-013563, dated 20 February 1985, issued by the USAR Personnel Center, which directed the applicant's discharge from the USAR with a GD, in the rank of PV2, effective 23 February 1985.  

8.  National Guard Regulation 600-200 (Enlisted Personnel Management) establishes the standards, policies, and procedures for the management of ARNG enlisted personnel.  Chapter 7 of the version of the regulation in effect at the time of the applicant's discharge provided for the discharge of enlisted members from the ARNG for continuous and willful absence from military duty (unsatisfactory participation).
9.  Army Regulation 135-178 sets forth the policies, standards, and procedures for the orderly administrative separation of ARNG and USAR enlisted Soldiers.  Chapter 13 provides for the separation of Soldiers for when it is determined the Soldier is an unsatisfactory participant.  The regulation indicates that the characterization of service normally assigned to members separated under these provisions will be under other than honorable conditions (UOTHC); however, the separation authority may authorize a GD or HD if it is warranted based on the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he was told it could be was carefully considered.  However, a discharge upgrade is not automatic.  A discharge may be upgraded if a duly constituted board determines it is improper or inequitable.  This determination is made based on the merits of each individual application submitted to a board empowered to review discharges.  The Army does not now have, nor has it ever had a policy to automatically upgrade discharges due to the passage of time.  

2.  The evidence of record confirms the applicant accrued nine unexcused absences in a one-year period and was accordingly declared an unsatisfactory participant by his unit commander.  His record is void of a complete discharge packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a properly constituted NGB Form 22 and separation orders issued by the ARNG and USAR on file, which identify the reason for and characterization of the discharge.  These documents carry with them a presumption of Government regularity in the discharge process.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and that the rights of the applicant were protected throughout the discharge process.  

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  As a result, there was no basis to support the issue of an HD by the separation authority at the time of the applicant's discharge or that would support an upgrade at this time.  His unsatisfactory participation clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Therefore, absent evidence of an error or injustice in the discharge process, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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)                                         AR20080017203



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ABCMR Record of Proceedings (cont)                                         AR20080017203


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