BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090011077 


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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states, in effect, that he was contaminated by a toxic gas while he was serving in the Army.

3.  The applicant rests on the information contained in his official records to support his contentions.

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.  On 20 September 1979, the applicant enlisted in the New Jersey Army National Guard (NJARNG) for 6 years in pay grade E-1.  He successfully completed his training as a food service specialist.

3.  The applicant's records show that after being charged with 20 unexcused absences from scheduled unit training assemblies which were acknowledged by the applicant, several attempts were made to notify him by mail that he was being recommended for separation from the NJARNG under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) and Army Regulation135-91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) for misconduct due to unsatisfactory participation.

4.  In a statement made by his commanding officer, dated 19 June 1981, it was noted the applicant had failed to perform in a satisfactory manner and had been given his rights by virtue of letters of instruction.  According to the statement, the applicant failed to provide his unit with a cogent reason as to why he had not participated in a satisfactory manner.

5.  The facts and circumstances pertaining to the applicant's separation from the NJARNG are not on file.  The National Guard Bureau Form 22 (Report of Separation and Record of Service) that he was furnished shows he was separated from the NJARNG on 10 May 1982 under other than honorable conditions under the provisions of State of New Jersey DOD Orders 88-6, dated 21 May 1982, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

6.  The applicant's records show that U.S. Army Reserve Personnel Center Orders D-03-905719 were published discharging the applicant from the USAR Ready Reserve under other than honorable conditions under the provisions of Army Regulation 135-178 effective 8 March 1986.

7.  A review of the applicant's official military records does not show that he was contaminated by a toxic gas while he was serving in the Army.

8.  Army Regulation 135-178 provides the policies and procedures for discharging members of the Army National Guard.  This regulation notes that Soldiers may be discharged for unsatisfactory participation and may be discharged under other than honorable conditions if warranted by his or her military records.

9.  Army Regulation 135-178 states that an honorable characterization of service is appropriate when the quality of the Soldier's 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.

10.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an honorable or a general discharge because he was contaminated by toxic gas while he was in the NJARNG.

2.  His contentions have been noted.  However, his contentions are not substantiated by the evidence of record.  There is no evidence in the available record, nor has the applicant submitted any evidence, to show that he was contaminated by toxic gas while he was in the NJARNG.

3.  His records show that he was discharged for misconduct due to unsatisfactory participation after being charged with 20 unexcused absences from scheduled unit training assemblies.  Based on the evidence contained in his official military record, the type of discharge that he received appropriately reflects his overall record service.

4.  In order to justify correction of a military record, the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.









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)                                         AR20090011077



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ABCMR Record of Proceedings (cont)                                         AR20090011077



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