BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090001333 


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 1993 discharge from the Michigan Army National Guard be upgraded from a general discharge to fully honorable.

2.  The applicant states there were bad feelings between him and his section chief.  The applicant states the section chief would not promote him so he told him he was not going to annual training since it was after his separation date.  He went over his section chief's head and did not follow the chain of command.  As such, he states he got out on his scheduled separation date, but the section chief wrote him "a bad conduct."

3.  The applicant states he is now attempting to secure an Active Guard Reserve (AGR) position, but was told he does not qualify for the AGR program because of his prior general discharge.

4.  The applicant provides a copy of his 1993 NGB Form 22 (National Guard Bureau Report of Separation and Record of Service).

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.  Records available to the Board indicate the applicant initially enlisted in the Michigan Army National Guard in August 1986.  By July 1991 he had been advanced to pay grade E-4.

3.  Although documents associated with his administrative separation from the Michigan Army National Guard were not in records available to the Board, the applicant’s 1993 NGB Form 22 indicates the applicant was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) for acts or patterns of misconduct on 1 June 1993.  He was issued a general discharge certificate (NGB Form 56) and a reentry eligibility (RE) code of "3."  The document indicates he was authorized an Army Service Ribbon, the National Defense Service Medal, and the Michigan Service Medal at the time of his discharge and that he had completed 6 years, 9, months, and 19 days of service with the Army National Guard.

4.  National Guard Regulation 600-200, paragraph 8-26q, provides for the separation of members of the Army National Guard for acts or patterns of misconduct.  An RE-3 was the authorized RE code which permitted Soldiers to return to military service if a wavier was approved for the purpose of reenlistment.

5.  National Guard Regulation 600-200 also states that a general discharge certificate will be issued to a Soldier who is concurrently discharged from the Army National Guard and as a Reserve of the Army and whose discharge from such service is under honorable conditions, but whose military record is not sufficiently meritorious to warrant an honorable discharge.  It is given by administrative action.

6.  In October 2007 the applicant requested a waiver of his prior-service disqualification in order to return to service with the Michigan Army National Guard.  He cited essentially the same arguments for approving the waiver request that he did in his request to this Board.  He indicated that he felt he was 


being mistreated and looked for advice and guidance outside the unit.  He maintained that he took some advice that was not in his best interest and knew it was wrong.  The applicant did not specify the act or patterns of misconduct which served as the basis for his discharge.

7.  On 16 October 2007 the applicant’s request for a waiver to permit him to reenlist in the Michigan Army National Guard was approved.  In the approval document, it was noted that "rather than work through his problems with the unit, he [the applicant] elected to disregard schedules, miss training assemblies, and come to drill out of proper uniform."

8.  In November 2007 the applicant reenlisted in the Michigan Army National Guard with two subsequent extensions.  His current separation date is scheduled for 12 November 2015.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary it is presumed that the applicant’s 1993 discharge from the Michigan Army National Guard was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering the facts of his case.  While his desire to serve as a member of the AGR program is admirable, it does not serve as a basis to upgrade the characterization of a properly executed discharge.  He has submitted neither probative evidence nor a convincing argument in support of his request.

2.  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 the aforementioned requirement.

3.  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)                                         AR20090001333



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ABCMR Record of Proceedings (cont)                                         AR20090001333



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