IN THE CASE OF:	  

		BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090000535 


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 uncharacterized discharge be changed to an honorable discharge, that his reentry eligibility (RE) code of RE-3 be changed, and that he be reimbursed for the loss of pay that resulted from his wrongful discharge.

2.  The applicant states, in effect, that he was discharged because he could not attend the military occupational specialty (MOS) 92S (Shower/Laundry and Clothing Repair Specialist) course in 2005.  He indicates he was previously injured on active duty while attending the MOS 92W (Water Treatment Specialist) course in 2005.  He also states that his Department of Veterans Affairs record will confirm his injury.

3.  The applicant provides reassignment orders, a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), enlistment documents, a Congressional letter, a Defense Finance and Accounting Service (DFAS) letter, a self-authored statement, and a U. S. Army Reserve (USAR) Form 1354-R (Army Reserve Warrant Officer Checklist) 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 military record shows that after having prior active duty and Reserve Component service, the applicant enlisted in the Florida Army National Guard (FLARNG) for 6 years on 27 February 2004.

3.  On 28 May 2004, the applicant entered active duty to attend training in MOS 91W (Health Care Specialist).  He served for 4 months and 16 days until being honorably released from active duty (REFRAD) on 13 October 2004 at the completion of his required active duty for training period.

4.  On 20 January 2005, the applicant extended his 27 February 2004 enlistment for 6 years.  An NGB Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus Addendum Army National Guard of the United States), dated 13 February 2005, on file in his official military personnel file (OMPF) shows he acknowledged that he would receive a $15,000 bonus for his 6-year reenlistment/extension.

5.  The applicant's OMPF also contains an NGB Form 22-5-R-E (Addendum to DD Form 4) which shows he received an approved interstate transfer from the FLARNG to the Colorado Army National Guard (COARNG) on 4 April 2005.  He accepted the transfer and acknowledged that he understood he would have to report to his unit of assignment no later than 1 July 2005.

6.  The applicant's OMPF does not contain a complete separation packet containing the specific facts and circumstances surrounding the applicant's separation processing.  The record does contain COARNG Element, Joint Force Headquarters (- Detachment 1), Orders 003-056, dated 3 January 2006, which directed the applicant's uncharacterized discharge from the ARNG effective 14 October 2005 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27x.

7.  The applicant's OMPF also contains an NGB Form 22 that confirms the applicant was discharged from the COARNG on 14 October 2005, under the provisions of National Guard Regulation 600-200, paragraph 8-27x, by reason of failure to report from an interstate transfer and that his service was uncharacterized.  Item 26 (Reenlistment Eligibility) shows he was assigned the RE code of 3.  It also shows he had completed 1 year, 7 months, and 18 days of military service and that he was transferred to the USAR Control Group (Reinforcement), St. Louis, Missouri.  His record contains no medical treatment records indicating he was suffering from a disabling physical or mental condition at the time of his ARNG discharge on 14 October 2005 or at any other time during his military service prior to this date.

8.  The applicant provides a DFAS letter, dated 13 November 2008, which states, in pertinent part, that after reenlisting on 27 February 2005 for a period of 6 years for which he received a $15,000 bonus, the applicant satisfactorily completed 7 months of service and was discharged on 14 October 2005.  Accordingly, he incurred a debt in the adjusted amount of $13,541.67 and recoupment was made in accordance with Department of Defense Financial Management Regulation, Volume 7A.

9.  National Guard Regulation 600-200 prescribes the policies for the personnel management of ARNG enlisted Soldiers.  Chapter 8, in effect at the time of the applicant's discharge, provided the policy for the discharge and separation of enlisted members of the ARNG.  Paragraph 8-27x provided the authority to discharge Soldiers from the ARNG who were on an interstate transfer and failed to report to their gaining State.

10.  National Guard Regulation 600-200, paragraph 5-37e, provides the interstate transfer process for Soldiers who fail to report to their transfer location. 
It states, in pertinent part, that for Soldiers who have failed to report to the transfer location within 90 days of enlistment, the gaining State will discharge and transfer the Soldier to the Individual Ready Reserve (IRR).  The authority paragraph will be paragraph 8-27x, National Guard Regulation 600-200; the RE code of 3 will be entered in item 26 of the NGB Form 22; and the discharge will be uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his uncharacterized discharge should be changed to an honorable discharge, his RE-3 code should be changed, and that he should be reimbursed all pay lost as a result of his unjust discharge were carefully considered.  However, there is insufficient evidence to support these claims.

2.  By regulation, when an interstate transfer Soldier fails to report to his gaining State unit of assignment within 90 days of enlistment, he/she will be discharged and transferred to the IRR under the provisions of National Guard Regulation 600-200, paragraph 8-27x.  He/she will be assigned an RE code of 3 and his/her service will be described as uncharacterized.

3.  The evidence of record confirms that subsequent to receiving an approved interstate transfer, the applicant failed to report to his new unit of assignment and State on 1 July 2005 and that he was discharged and transferred to the USAR Control Group on 14 October 2005, as evidenced by REFRAD orders and an NGB Form 22 issued at that time, which are on file in his OMPF.  Therefore, the uncharacterized discharge and RE-3 code the applicant received was appropriate and correctly assigned in accordance with the applicable regulatory guidance and documented on his NGB Form 22.

4.  The evidence of record confirms the applicant satisfactorily completed 7 months of his 6-year enlistment for which he received a $15,000 enlistment bonus.  Therefore, the applicant did not fulfill his enlistment contract and the unearned portion of his enlistment bonus was appropriately recouped by DFAS, as is required by the governing regulation.

5.  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)                                         AR20090000535



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ABCMR Record of Proceedings (cont)                                         AR20090000535



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