IN THE CASE OF:	

		BOARD DATE:	      24 March 2009

		DOCKET NUMBER:  AR20080019091 


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, correction of his military records to show that his discharge under other than honorable conditions from the New York Army National Guard and the U.S. Army Reserve was upgraded to honorable.

2.  The applicant states that he was penalized for excessive working hours.  He contends that he was told his discharge would be honorable.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Report of Separation from Active Duty).

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 15 March 1979, the applicant enlisted in the New York Army National Guard and the Reserve of the United States Army.

3.  On 18 April 1979, the applicant entered active duty for training (ADT).  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).  He was released from ADT on 11 August 1979 and transferred to the 42nd Maintenance Battalion, Bronx, New York.

4.  Records show that the applicant was absent without authority from unit training assemblies on 13 and 14 June 1981; 9 and 28 July 1981; and from annual training from 10 through 25 July 1981.  Two notices of unsatisfactory participation were accepted as registered mail by the applicant.  Two other notices were returned to the command annotated by the postal authorities as unclaimed.

5.  On 4 November 1981, a New York Army National Guard assistant adjutant general took action under the provisions of Army Regulation 135-178, paragraphs 7-46a(3) and 8-2b(5), that provided if the notice of unsatisfactory participation was returned as unclaimed or undeliverable or if the member receipts for the notification but fails to respond, such action will constitute a waiver of the member's right to a hearing before a board of officers.  Accordingly, the applicant was discharged for misconduct effective 23 September 1981.

6.  New York Army National Guard, State of New York Executive Department Division of Military and Naval Affairs, Orders 216-123, dated 9 November 1981, discharged the applicant from the New York Army National Guard effective 23 September 1981.  The characterization of service was under other than honorable conditions.

7.  NGB Form 22 (Report of Separation and Record of Service) effective 23 September 1981 shows that the applicant was transferred to the U.S. Army Reserve.

8.  U.S. Army Reserve Personnel Center, St. Louis, MO, Orders Number 
D-07-903664, dated 30 July 1985, discharged the applicant from the U.S. Army Reserve Ready Reserve with a characterization of service as under other than honorable conditions.

9.  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.  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 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.  Only the separation authority listed in Army Regulation 135-178, paragraph 1-25, may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  Army Regulation 135-178 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.  The applicant contends that he was told his discharge would be honorable.

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 were appropriate considering all of the facts of the case.

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.

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.



      __________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)                                         AR20080019091



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ABCMR Record of Proceedings (cont)                                         AR20080019091



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