IN THE CASE OF:	

		BOARD DATE:	 15 December 2009 

		DOCKET NUMBER:  AR20090009226 


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 a fully honorable discharge.

2.  The applicant states that he is currently on active duty for special work (ADSW) in the Pennsylvania Army National Guard (PAARNG).  His chain of command has notified him that he is being considered for a National Guard 
full-time position.  He states that the Active Guard Reserve (AGR) program in the PAARNG requires that all active duty service be documented with an honorable discharge on the DD Form 214 (Certificate of Release or Discharge from Active Duty).  On 30 March 1988, his first active duty service was upgraded to a general, under honorable conditions discharge.  He states that if this discharge upgrade is granted, it will match his two most current discharges [honorable] in which he served as a deployed Soldier in support of Operation Iraqi Freedom and Operation Enduring Freedom.

3.  The applicant provides no additional documents 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 is currently serving in the PAARNG in the rank/grade of staff sergeant (SSG)/E-6.

3.  The applicant was appointed as a U.S. Army Reserve (USAR) commissioned officer in May 1982.  He was ordered to active duty on 17 June 1983 in the rank of second lieutenant.

4.  The applicant’s DD Form 458 (Charge Sheet) and discharge proceedings are not available for review.

5.  On an unknown date the applicant requested resignation for the good of the service under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 5.  His resignation packet is not available.

6.  On 25 July 1985, the applicant was discharged under the provisions of Army Regulation 635-120 with an under other than honorable conditions discharge.  His DD Form 214 for the period ending 25 July 1985 shows he had completed
2 years, 1 month, and 9 days of active military service with no lost time during the period under review.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.  

8.  However, on 30 March 1988, the ABCMR upgraded the applicant’s under other than honorable conditions discharge to a general, under honorable conditions discharge.

9.  Army Regulation 635-120 implements the statutory provisions of Title 10, U. S. Code governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation 
for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions.

10.  Army Regulation 635-100 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’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 contention that his discharge should be upgraded to fully honorable was carefully considered.  However, there is insufficient evidence on which to warrant an upgrade in this case.

2.  In the absence of the applicant's voluntary request for separation under the provisions of Army Regulation 635-120, chapter 5 for the good of the service to avoid trial by court-martial, it is presumed it was administratively correct and in conformance with applicable regulations.

3.  It is noted that the ABCMR upgraded the applicant’s under other than honorable conditions discharge to a general, under honorable conditions discharge; however, it is presumed the applicant’s overall record of service was not satisfactory and he did not meet the standards of honorable service as defined in Army Regulation 635-100. 

4.  After a review of the available evidence, it is determined the applicant has not presented sufficient evidence which warrants changing his general, under honorable conditions discharge to a fully honorable 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.



      __________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)                                         AR20090009226



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ABCMR Record of Proceedings (cont)                                         AR20090009226



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