IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090011555 


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 two separate applications, correction of his records to show that he was honorably discharged from the New Jersey Army National Guard (NJARNG) on 28 June 1990 based on his record of service.

2.  The applicant states that he does not understand why he received the type of discharge that he was furnished and that his participation in Operation Desert Storm should be counted in his favor.  He states that he put his life on the line for his country and that he was not notified of the type of discharge that he received until he applied for a housing certificate.

3.  The applicant provides no additional documentation in support of is 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.  On 21 July 1983, the applicant enlisted in the NJARNG for 6 years in the pay grade of E-1.  He successfully completed his training as an infantryman.  He was promoted through the ranks to the pay grade of E-4 effective 1 July 1986.

3.  The applicant's records show that on 1 November 1988, he was reduced to the pay grade of E-3 for inefficiency, due to unexcused absence from unit training.

4.  On 7 May 1989, the applicant extended his enlistment in the NJARNG for 6 years and on 15 June 1989 he was promoted to the pay grade of E-4.

5.  On 28 June 1990, the applicant was discharged under honorable conditions (general) under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27g, for unsatisfactory participation.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that he was furnished shows that he completed 6 years, 11 months, and 8 days of net service this period and that he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining 5-year service obligation.

6.  On 18 September 1991, the applicant submitted a request to be released from the USAR Control Group (Reinforcement) and to be transferred to a troop program unit (TPU) of the Selected Reserve.  He was released from the USAR Control Group effective 23 September 1991 and assigned to a TPU.

7.  On 26 February 1992, the applicant was released from his assigned TPU and he was assigned to the USAR Control Group (Reinforcement) due to unsatisfactory participation.  On 29 September 1992, he was released from the USAR Control Group (Reinforcement) and he was assigned to another TPU.

8.  On 28 June 1994, the applicant was honorably discharged from the USAR upon completion of his USAR service obligation.

9.  The available records do not show that the applicant has ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

10.  National Guard Regulation 600-200, chapter 8, and Army Regulation 135-178 (Separation of Enlisted Personnel), chapter 7, provide for the separation of enlisted personnel of the USAR and the Army National Guard for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his or her 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.  Only the separation authority listed in Army Regulation 135-178, paragraph 1-25, may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

11.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Paragraph 3-7 also provides that 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 records should be corrected to show that he was honorably discharged from the NJARNG on 28 June 1990 based on his overall record of service.

2.  His contentions have been noted.  However, it appears that his overall record of service was considered at the time that he was discharged from the NJARNG.

3.  His records show that he had been reduced in pay grade on 1 November 1988 for inefficiency due to unexcused absence from unit training.  He was subsequently discharged from the NJARNG on 28 June 1990 due to unsatisfactory participation.  In accordance with the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate.

4.  While the applicant was honorably discharged from the USAR on 28 June 1994, the NGB Form 22 that he was furnished at the time of his discharge from the NJARNG was properly prepared to reflect that his service was not totally honorable in that branch of the Armed Forces.

5.  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.

6.  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)                                         AR20090011555



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ABCMR Record of Proceedings (cont)                                         AR20090011555



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