IN THE CASE OF:
BOARD DATE: 19 MAY 2009
DOCKET NUMBER: AR20090002960
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 an upgrade of his Army National Guard (ARNG) discharge from general to honorable.
2. The applicant states, in effect, that he was discharged from the ARNG for not divulging his history. He adds that he did, in fact, reveal his history and even furnished police reports. He also adds that upon reenlistment in 2001 his recruiter was aware of his police record and that upon his reenlistment in 2002 another sergeant at his unit was also aware of his police record, as both received copies of the records from the police and sheriffs department.
3. The applicant did not provide any additional documentary evidence in support of his request.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. With prior enlisted service in the U.S. Marine Corps and the Wyoming ARNG, the applicants records show he enlisted in the Indiana ARNG (INARNG) in the rank of sergeant/E-5 for a period of 1 year on 28 July 2000. He was assigned to the 3rd Battalion, 39th Field Artillery, Crawfordsville, IN, in military occupational specialty 13F (Fire Support Specialist). His records also show he executed a
6-year extension on 2 June 2001.
3. The facts and circumstances surrounding the applicants discharge are not available for review with this case. However, on 24 April 2003, the INARNG, Indianapolis, IN, published Orders 114-008, directing the applicants discharge from the ARNG under the provisions of paragraph 8-26g(4) of National Guard Regulation 600-200 (Enlisted Personnel Management) with a general discharge effective 1 May 2003.
4. On 1 May 2003, the applicant was accordingly discharged. The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he was discharged under the provisions of paragraph 8-26g(4) of National Guard Regulation 600-200 by reason of fraudulent entry with a character of service of under honorable conditions (general). This form further shows he completed 2 years, 9 months, and 4 days of service during this period.
5. National Guard Regulation 600-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 8-26g(4) establishes policy and prescribes procedures for separating members for fraudulent entry. Fraudulent entry is the procurement of an enlistment, reenlistment, or period of service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. The service of a member separated under this provision of will be characterized as honorable, general, or under other than honorable conditions as warranted by his or her military record.
6. National Guard 600-200, in pertinent part, provides that a general discharge is a separation under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his ARNG discharge should be upgraded.
2. The applicants record is void of the facts and circumstances that led to his discharge; however, his NGB Form 22 shows that he was discharged from the INARNG by reason of fraudulent enlistment with a general under honorable conditions discharge. It appears that his discharge was predicated on his failure to disclose a previous police record. Nevertheless, the applicant has not provided any compelling evidence to refute the nature of his discharge from the INARNG and the Board is compelled to presume administrative regularity in the discharge.
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.
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