IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090008239 


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 to an honorable discharge and restoration of his original rank of specialist (SPC)/E-4.

2.  The applicant states, in effect, that after being honorably released from active duty at the rank of SPC he enlisted in the Missouri Army National Guard (MOARNG) in May 1988 in the rank of SPC.  The applicant states that he attended drills regularly "but after the first 2-3 drills the 1st Sergeant called me in and explained that my military occupational specialty (MOS) 31C (Signal Channel Radio Operator) was no longer available" in the unit.  He was given two options -- of transferring to the Individual Ready Reserve (IRR) or finding another unit.

3.  The applicant states that he was busy with college at the time, so he opted to transfer to the IRR.  He called the unit on his status and he was told the paperwork was being processed.  The applicant states that he did not receive transfer orders, but after some time he stopped calling.

4.  The applicant states that in January 2007, he decided to join the ARNG, so he contacted a recruiter.  They completed all the paperwork and he passed the physical, but after reviewing his records the recruiter found that he was separated from the MOARNG with a general discharge.

5.  The applicant further states that the recruiter told him he could enlist but at the rank of private first class (PFC)/E-3 and not in with MOS he previously held.  The applicant finally states that he has tried to take care of this matter but he has not been successful in doing so.  The applicant further states that during his active duty career he was a good Soldier.  He feels that he was taken advantage of and not given the truth.

6.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 June 1987 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 Official Military Personnel File (OMPF) provided to the Board does not contain his DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) for his enlistment in the ARNG or unit documentation for his unexcused absences.  However, there are sufficient documents in his available record for the Board to conduct a fair and impartial review of this case.  In addition, the applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending
20 August 1989 and DD Form 214 for the period ending 15 June 1987 were available for review.

3.  The applicant's DD Form 214 for the period ending 15 June 1987 shows he enlisted in the Regular Army (RA) on 16 August 1984.  He was awarded MOS 31C.  On 15 June 1987, the applicant was honorably released from active duty in the rank of SPC after completing 2 years and 10 months of active service.  He was then transferred to the 326th Support Group, Kansas City, KS (a U.S. Army Reserve (USAR) unit) to complete his Reserve obligation.

4.  The applicant's NGB Form 22 for the period ending 10 August 1989 shows he enlisted in the MOARNG on 25 May 1988 in the rank/grade of PFC/E-3.  He was subsequently separated from the MOARNG under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-27g, for unsatisfactory participation, and issued a general, under honorable conditions discharge.  Item 9 (Command to Which Transferred) shows he was transferred to the USAR Control Group (IRR) to complete his Reserve obligation.  Item 8a (Station or Installation at Which Effected) shows the entry "Headquarters and Headquarters Company, 110th Engineer Battalion, Kansas City, MO."  Item 18 (Remarks) shows the entries:

	a.  "Individual was discharged without personnel [sic] notice IAW [in accordance with] Chap 8, NGR 600-200";

	b.  "Individual assigned to USAR Control Group (IRR) for completion of 0 yrs 8 months 18 days Statutory Obligation";

	c.  "NGB Form 22 and NGB Form 56a [General Discharge Under Honorable Conditions from the Federally Recognized ARNG], mailed by First Class Mail to address shown in Item #19"; and 

	d.  "SRIP [Selected Reserve Incentive Program] Participant Terminated Unsat Perf without recoupment."

5.  Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) provides that a discharge characterization will be determined solely by the Soldier's military record during the current enlistment or period of service to which the separation pertains, plus any extensions of service prescribed by law or regulation or effected with the consent of the member.

6.  National Guard Regulation 600-200 provides that a general discharge certificate will be issued to a Soldier who is discharged from the ARNG and who reverts to the control of the Army Reserve; whose discharge from such service is under honorable conditions, and whose military record is not sufficiently meritorious to warrant an honorable discharge.  Character of discharge and service is "Under honorable conditions."

7.  National Guard Regulation 600-200, paragraph 11-60, in effect at the time, stated that all enlistments would be made against position vacancies under the "authorized" column of the modified table of equipment/table of distribution and allowances (MTOE/TDA) (by paragraph and line number).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge and that his original rank of SPC should be restored.  However, there is no evidence in the applicant's service records and the applicant has provided no evidence that supports these contentions.

2.  Although separation processing documentation in this case is incomplete, his NGB Form 22 shows that separation processing took place and he was discharged for unsatisfactory participation.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would tend to jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  As a result, his discharge accurately reflects his record of service.

3.  The applicant’s active duty service conduct is noteworthy.  However, overall service conduct alone is not a basis for upgrading a discharge and, upon review, the applicant's overall service conduct is not sufficient to mitigate the characterization of service he was given by the MOARNG on 20 August 1989.  The regulation provides that a discharge characterization will be determined solely by the Soldier's military record during the enlistment to which the separation pertains. 

4.  Evidence of record shows the applicant separated from active duty and he was transferred to a USAR unit in the rank/grade of SPC/E-4.  His NGB Form 22 for the period ending 20 August 1989 shows he enlisted in the MOARNG and he was assigned to Headquarters and Headquarters Company, 110th Engineer Battalion.  The applicant apparently took a reduction in rank and he was placed in an authorized position as a PFC/E-3.  He was subsequently discharged from the MOARNG for unsatisfactory participation in the rank of PFC.  Therefore, the applicant's rank on his NGB Form 22 appears to be correct.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090008239



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ABCMR Record of Proceedings (cont)                                         AR20090008239



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