IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090010431 


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 discharge from the Army National Guard (ARNG) from a general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he served for 6 years in the ARNG with no convictions and that he has no idea why he received a general discharge.  He adds that he left the Florida ARNG (FLARNG) on 31 July 1985 under honorable conditions.

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 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 records are not available for review with this case.  It is believed that the applicant’s records remained at his ARNG unit at the time.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s reconstructed records show he enlisted in the Kentucky ARNG (KYARNG) on 19 May 1980.  He subsequently entered active duty for training (ADT) on 16 October 1980, he completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 67N (Utility Helicopter Repairman).  He was released from ADT to the control of his ARNG unit on 24 March 1981.

4.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 5 months and 9 days of creditable active service.  He was assigned to the 1155th Transportation Company, Frankfurt, KY.

5.  The applicant’s reconstructed records further show he was honorably discharged from the KYARNG on 28 June 1984 for the purpose of immediate reenlistment of an unknown duration on 29 June 1984.

6.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his reconstructed records contain a properly-constituted National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows he was discharged from the ARNG and as a Reserve of the Army on 18 May 1986 under the provisions of paragraph 7-9b of National Guard Regulation 600-200 (Enlisted Personnel Management) with a general discharge by reason of continued absence from drills.  Item 18 (Remarks) of this form shows the following entries:

	a.  He served in the KYARNG from 19 May 1980 to 28 June 1984, the FLARNG from 29 June 1984 to 31 July 1985, and the KYARNG from 1 August 1985 to 18 May 1986; and 

	b.  He had 10 unexcused absences during the last 12 months. 

7.  Army Regulation 135-178 (Separation of Enlisted Personnel) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  Chapter 7 of the regulation in effect at the time governed separation for misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  An 
honorable characterization of service is not authorized for a member who has completed entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate.

8.  Chapter 7 of National Guard Regulation 600-200 prescribes procedures for the separation of enlisted personnel from the ARNG.  Paragraph 7-8 of the regulation, in effect at the time, states, in pertinent part, that the State Adjutant General is responsible for making a continuous and willful absence determination.  Furthermore, a notification of discharge may be either actual or constructive.  Actual notice involves personal delivery of the discharge certificate to the individual.  A constructive notice is accomplished when actual delivery cannot be accomplished due to the absence of the individual being discharged.  When personal delivery cannot be accomplished, the NGB Form 22 will be mailed to the individual's last known address.

9.  National Guard Regulation 600-200 provides, in pertinent part, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge from the ARNG should be upgraded to an honorable discharge.  

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his reconstructed record contains a properly-constituted NGB Form 22 that shows he was discharged by reason of continued absence from drills of (accumulating 10 unexcused absences within the past 12 months) with a general discharge.

3.  As a member of the ARNG, the applicant was required to attend all scheduled unit training assemblies (UTAs) or multiple unit training assemblies (MUTAs) and annual training periods.  It appears that he did not do so.  In the absence of evidence to the contrary, it is presumed that he received notification letters from his immediate commander.  It also appears that his immediate commander initiated elimination action against him and the Adjutant General verbally approved his discharge.


4.  Based on his failure to attend unit drills, the applicant's service appears not to have met the standards of acceptable conduct and performance of duty for Army National Guard personnel.  This misconduct also renders his service as unsatisfactory.  Therefore, there is insufficient evidence to upgrade his 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)                                         AR20090010431



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ABCMR Record of Proceedings (cont)                                         AR20090010431



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