BOARD DATE: 17 November 2009
DOCKET NUMBER: AR20090010486
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 general discharge from the Virginia Army National Guard be upgraded to honorable.
2. The applicant states that he joined the military because he was 18 years old without a high school education and he had a difficult time meeting basic survival needs (food, shelter, and clothing). He indicates that it was wartime but he missed the window of opportunity to join the Regular Army so he joined the Army National Guard instead. He goes on to state that it was still impossible for him to make enough money to afford rent and food since the Guard only allowed him to work a few days a month. He grew frustrated with his situation and left under circumstances which he has regretted for years. He states that he won't pretend his actions were proper and that he did not do them out of spite or disloyalty but he was merely trying to survive.
3. The applicant provides no documentary evidence 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 applicants 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 applicants 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 Virginia Army National Guard on 7 March 1991 and trained as a computer/machine operator.
3. On 26 October 1992, the applicant was notified of his pending separation under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel). The reasons cited for the proposed separation were that on 18 April 1992 the applicant failed all three events of the Army Physical Fitness Test (APFT); that on 4 October 1992 he was retested and failed to pass the two mile run; and that TAG-VA Memorandum, dated 9 April 1992, Subject: Enlisted Discharge Procedures for APFT Failure, states that Soldiers who fail two consecutive APFTs will be processed for discharge for unsatisfactory performance.
4. Discharge orders show the applicant was discharged with a general discharge on 11 January 1993 under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26o.
5. The applicant's National Guard Bureau [NGB] Form 22 (Report of Separation and Record of Service) shows that he was discharged on 11 January 1993 with a general discharge under the provisions of NGR 600-200, paragraph 8-26o for unsatisfactory performance.
6. NGR 600-200, in effect at the time, set forth the basic authority for the personnel management of enlisted personnel of the Army National Guard. Paragraph 8-26o of this regulation stated that a Soldier would be discharged from the Army National Guard for unsatisfactory performance.
7. Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.
8. Army Regulation 135-178 provides, in pertinent part, that the honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty
for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
Evidence of record shows the applicant was discharged under honorable conditions (a general discharge) from the Virginia Army National Guard for unsatisfactory performance due to failing the APFT twice. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an 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.
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