IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100006958 


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 the following:

* Upgrade of the character of his discharge to Uncharacterized
* Change to the reason for his discharge
* Change to reentry (RE) code

2.  The applicant states his last assignment was mailed to the wrong address and he just received the assignment in 2009.  He also states he was unaware he was transferred to the United States Army Reserve (USAR) Control Group.  He claims clemency is warranted because it is unjust for him to suffer the adverse consequences of a bad discharge for 14 years.  He claims his character shows he is a prominent man and was a good Soldier.   

3.  The applicant provides the following documents in support of his application:

* Self-Authored Statement
* Army National Guard (ARNG) Report of Separation and Record of Service
* New York ARNG Board of Review and Correction of Military Records Record of Proceedings (ROP), dated 4 March 1992
* Honorable Discharge Certificate, dated March 1995
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 July 1987
* Police Department Fingerprint Card, dated 5 June 2007
* 3 Third-Party Letters
* Business Certificate Documents, dated 22 May 2000
* Letter of Appreciation, dated 8 June 2006
* Birth Certificate Documents

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 record shows he enlisted in the NYARNG for 8 years on
27 January 1987.  He entered active duty for initial active duty for training (IADT) on 23 February 1987 and completed IADT and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic) on 31 July 1987, at which time he was released from active duty.  

3.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge from the NYARNG on 18 January 1990.  The record contains a Report of Separation and Record of Service that shows the applicant was discharged from the NYARNG on 18 January 1990, in the rank of specialist, under the provisions of National Guard Regulation 600-200. 

4.  The separation document further shows the applicant’s service was characterized as general, under honorable conditions and he was assigned an RE code of 3.  It also shows he was transferred to the USAR to complete his military service obligation. 

5.  On 28 March 1995, the applicant was honorably discharged from the USAR and was issued an Honorable Discharge Certificate. 

6.  The applicant provides an ROP from the NYARNG dated 4 March 1992 that shows after considering all the evidence the board unanimously concluded no documentation existed that warranted a change to the applicant’s separation from the NYARNG or his record.  
7.  The applicant also provides third-party statements, police records, and education documents attesting to his post-service good character and accomplishments.

8.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers.  It states Soldiers administratively discharged from the ARNG and, if applicable, the Reserve of the Army, or discharged by sentence of a special court-martial, may petition for a change to discharge.  The appeal petition may address that portion of the discharge concerning the State ARNG discharge.  AGs may grant or deny the appeal.  

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention that his separation from the NYARNG was unjust and the characterization, reason, and RE code should be changed has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge from the NYARNG; however, it does contain a properly-constituted Report of Separation and Record of Service that identifies the authority and reason for discharge and this document carries with it a presumption of Government regularity.  

3.  By regulation, State AGs have the authority to deny a discharge appeal from a Soldier separated from the ARNG.  In this case, the applicant provides an ROP from the NYARNG that confirms a board held in the State found insufficient evidence to change the applicant’s discharge record and the State AG denied his discharge appeal.  As a result, given the applicant was honorably discharged from the USAR and because this Board lacks the authority to reverse a discharge appeal denial decision of the State AG, absent any evidence of an error or injustice related to his discharge processing, there is an insufficient evidentiary basis to support granting the requested relief. 



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)                                         AR20100006958



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)