IN THE CASE OF:	  

		BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090007286 


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 upgrade of his general under honorable conditions discharge from the New York Army National Guard (NYARNG) to an honorable discharge.

2.  The applicant states that he found it difficult to participate in the additional duties and details assigned to him after the death of his father.  Due to the absence of his father, he found it advantageous to the normal operation and maintenance of his family to request Reserve status.  He states that his presence became vital to provide care for his mother and sibling.  Now, he needs to use his Certificate of Eligibility from the Department of Veterans Affairs to purchase a home for his family and he would like to be issued a new certificate.

3.  The applicant provides the following documents in support of his application: his discharge orders from the U.S. Army Reserve (USAR), dated 17 January 1995; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 December 1989; his automated National Guard Bureau Report of Separation and Record of Service for the period ending 26 June 1994; a statement from the Division of Military and Naval Affairs, dated 29 September 2003; his Army National Guard Current Annual Statement, prepared on
9 December 1994; and his VA Form 26-8320a (Certificate of Eligibility for Loan Guaranty Benefits), dated 9 January 1997.




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 enlisted in the NYARNG on 1 November 1988 for a period of eight years.  At the completion of active duty for training, he was awarded military occupational specialty (MOS) 31Q (tactical satellite/microwave systems operator).  His highest grade attained was private first class (PFC)/E-3.  

3.  The applicant’s discharge notification packet is not available for review.

4.  Office of the Adjutant General, State of New York, Orders 167-002, dated 29 August 1994, discharged the applicant from the ARNG on 26 June 1994 under the provisions of National Guard Regulation 600-200 and Verbal Orders from The Adjutant General (VOTAG), date confirmed 26 June 1994, with a general under honorable conditions discharge.  He had completed 5 years, 7 months, and 26 days net service.  On 27 June 1994, the applicant was transferred to the USAR Control Group (Annual Training) for completion of his statutory/contractual obligation.

5.  Department of the Army, USAR Personnel Center, St. Louis, MO, Orders
D-01-0504671, dated 17 January 1995, discharged the applicant from the USAR under the provisions of Army Regulation 135-178, effective 17 January 1995, with an honorable discharge.

6.  Army Regulation 135-178 (ARNG and Army Reserve – Separation of Enlisted Personnel), in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the ARNG of the United States and the USAR.

   a.  Paragraph 1-18a states that a Soldier's characterization of service will be based on the quality of the Soldier's service in accordance with the standards of 

personal conduct and performance of duty for military personnel.  As a general rule, characterization will be based on a pattern of behavior rather than an isolated incident.  There are times, however, in which the conduct or performance of duty reflected by a single incident can be basis for characterization.

	b. Paragraph 1-18b provided the types of characterization that are authorized.  It states that an honorable characterization of service is appropriate when 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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding his difficulty in performing additional duties and details assigned to him after the death of his father and his responsibility for the care of his family were carefully considered.  Unfortunately, these factors are not sufficiently mitigating to warrant relief in this case.  

2.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge notification packet and subsequent discharge from the ARNG was administratively correct and in conformance with applicable regulations.

3.  It appears the applicant’s ARNG chain of command determined that his overall military service did not meet the standards for an honorable discharge and appropriately characterized his service as general, under honorable conditions.

4.  There is no apparent error, injustice, or inequity on which to base an upgrade of the applicant’s ARNG characterization of service of general, under honorable conditions to honorable.  

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)                                         AR20090007286



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ABCMR Record of Proceedings (cont)                                         AR20090007286



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