IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20080018188 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he served in the Army on active duty for 3 years and had an unblemished record.  He states that he joined the Michigan Army National Guard (MIARNG) during Desert Storm and decided it was not for him and he wanted to get out.  He states that he was informed by a sergeant that he would do all he could to make sure the he got a discharge under other than honorable conditions.  He states that he was only a member of the MIARNG for 1 month; however, his NGB Form 22 (Report of Separation and Record of Service) shows that he was in the MIARNG for 8 months since he was pending release.

3.  The applicant provides in support of his application, a letter from the Vietnam Veterans of America State of Michigan Council, dated 6 November 2008, referencing the type of discharge that he received and attesting to his trustworthy, honest and honorable character; a letter from the MIARNG Chief of Joint Staff, dated 2 October 2008, addressed to his State Senator pertaining to his Discharge Summary Report; a copies of his Army National Guard (ARNG) Annual Statement; copies of his National Guard Bureau (NGB) Form 22; copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of the memorandum appointing him to the rank of corporal (E-4), dated     27 October 1990; a copy of his Reserve Component Primary Leadership Development Course Service School Academic Evaluation Report; a copy of Permanent Orders 102-61, dated 1 June 1989, awarding him the Good Conduct Medal; a copy of a Headquarters, 82nd Airborne Division, Certificate of Achievement; a copy of his Individual Jump Record; seven letters of recommendation (including one self-authored letter of recommendation) attesting to his good character and post service conduct; nine letters of congratulations and appreciations for his Army and civilian service; a copy of his criminal history; copies of his Police Record Check; a copy of a letter from the National Personnel Records Center, dated 6 October 2008, addressed to his State Senator providing copies of documents contained in his official record; a copy of his DA Form 2-1 (Personnel Qualification Record); a copy of part of his Enlistment/Reenlistment Document; a Chronological Statement of Retirement Points, dated 14 January 1991; six Certificates of Completion; and a copy of Orders 250-090, dated         24 December 1991, reducing him to the pay grade of E-2 and discharging him from the ARNG and as a Reserve of the Army.

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 available records show that, on 31 July 1986, the applicant enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program, in the pay grade of E-1.  He enlisted in the Regular Army (RA) in Detroit, Michigan for 
3 years, in the pay grade of E-1 on 4 August 1986.  He successfully completed his training as an infantryman and he was advanced through the ranks to the pay grade of E-4.

3.  While he was in the RA he was awarded the Army Lapel Button, the Marksman Marksmanship Qualification Badge (Rifle M-16), the Expert Marksmanship Qualification Badge (Hand Grenade), the Army Service Ribbon, the Army Good Conduct Medal, and the Parachutist Badge.

4.  After completing 3 years of net active service, he was honorably released from active duty (REFRAD) on 3 August 1989, under the provisions of Army Regulation 635-200, chapter 4, at the expiration of his term of service and he was transferred to the USAR Control Group (Reinforcement).
5.  On 27 April 1991, the applicant enlisted in the MIARNG for 4 years, in the pay grade of E-4.

6.  The facts and circumstances surrounding the applicant's discharge process are not in the available records.  His NGB Form 22 shows that, on 27 December 1991, he was reduced to the pay grade of E-1 and that he was discharged under other than honorable conditions, under the provisions of National Guard Regulation 600-200, paragraph 8-26q, due to acts or patterns of misconduct.  His NGB Form 22 also shows that his reason for discharge was due to unsatisfactory participation.

7.  A review of the available evidence does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  National Guard Regulation 600-200 (Enlisted Personnel Management) provides for the separation of enlisted personnel from the Army National Guard.  Paragraph 8-26q provides for the discharge of Soldiers from the State Army National Guard and/or from the Reserve of the Army.  It states, in pertinent part, that for Soldiers being considered for separation due to acts or patterns of misconduct an administrative discharge board is required (unless waived by the Soldier) when the Soldier has 6 or more years of total military service or when the separation authority considers discharge under other than honorable conditions appropriate.  

9.  National Guard Regulation 600-200, paragraph 8-8a provides that an honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly be inappropriate.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  His contentions have been noted along with all of the documentation that he has submitted in support of his application.  His post service conduct has also been considered.  However, the facts and circumstances surrounding his discharge from the MIARNG are not available for review at this time and the available records show that he was discharged under other than honorable condition for misconduct, due to unsatisfactory participation.

3.  There is no evidence in the available record nor has the applicant submitted any evidence to show that the type of discharge he received from the MIARNG was in error or unjust and, in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  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.

5. 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)                                         AR20080018188



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ABCMR Record of Proceedings (cont)                                         AR20080018188



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