IN THE CASE OF:
BOARD DATE: 18 February 2010
DOCKET NUMBER: AR20090008730
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 3 January 2007 discharge be voided and that he be transferred to the Retired Reserve.
2. The applicant states, in effect, that he should have been transferred to the Retired Reserve instead of being discharged on 3 January 2007.
3. The applicant provides a copy of Headquarters, 88th Regional Readiness Command, Fort Snelling, MN, Orders 06-338-00105, dated 4 December 2006 that discharged him from the U.S. Army Reserve (USAR), effective 3 January 2007; and a copy of USAR Personnel Command, St. Louis, MO letter, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated
23 January 2002, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 28 October 1952 and he enlisted in the USAR Delayed Entry Program (DEP) on 19 December 1981. He was discharged from the USAR DEP on 16 February 1982 and he enlisted in the Regular Army (RA) on 17 February 1982. He served on active duty until he was released from active duty on 17 February 1986.
2. He enlisted in the USAR on 19 December 1986 and he continued to serve through a series of continuous reenlistments. He was issued his 20-year letter on 23 January 2002 advising him that he was eligible for retired pay upon application at age 60 (28 October 2012). He was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 March 2002.
3. On 8 October 2006, the applicant was involuntarily transferred for the convenience of the government from his troop program unit (TPU) in Bowling Green, KY to a holding account in the Regional Readiness Command at Fort Snelling.
4. On 3 January 2007, he was discharged with a general, under honorable conditions discharge under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations).
5. The facts and circumstances surrounding the applicants discharge are not present in the applicants Official Military Personnel File (OMPF). However, it appears that the applicant was reassigned to the Regional Readiness Command for the purpose of separation for misconduct due to abuse of illegal drugs under the provisions of Army Regulation 135-178.
6. Army Regulation 135-178, chapter 12, provides, in pertinent part, that a Soldier may be discharged for misconduct when it is determined that the Soldier is unqualified for further military service by reason of abuse of illegal drugs. Abuse of illegal drugs is serious misconduct and discharge action will normally be based upon commission of a serious offense.
7. Army Regulation 135-178 also provides, in pertinent part, that orders discharging a Soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud. After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants discharge for misconduct was administratively correct and in conformance with applicable regulations. Accordingly, the discharge directed and the reasons therefore were appropriate under the circumstances.
2. Given the reason for the applicants discharge, it is not feasible to transfer the applicant to the Retired Reserve where he would be subject to recall. However, his discharge does not affect his entitlement to apply for retired pay when he reaches 59 1/2 years of age.
3. 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.
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