IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100022244 


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 records be corrected to show he reenlisted in the U.S. Army Reserve (USAR) in January 1983.

2.  He states the status of his USAR separation is unknown.  In January 1983, he reenlisted in the USAR for an additional 6 years and the reenlistment was not honored.  There seems to be no record that he served with the USAR.  He wants to know what happed to the record of his reenlistment for an additional 6 years, not 6 months, before being "kicked out without notice."

3.  He provides:

* 1977 DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States)
* DD Form 214 (Report of Separation from Active Duty)
* 1982 Army National Guard (ARNG) discharge orders
* NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service)
* NGB Form 22-1 (Request/Decline Copy of NGB Form 22 – Narrative Reason for Separation)
* 1983 USAR discharge orders
* 1983 Honorable Discharge Certificate
* NGB Form 22A (Correction to NGB Form 22)
* letter from the Michigan (MI) Department of Military Affairs
* two copies of a letter from Chief, Claims/Inquiries Division, Centralized Pay Operations

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 military records show he enlisted in the USAR and Michigan Army National Guard (MIARNG) in pay grade E-1 on 5 February 1977.  He was ordered to initial active duty for training (ADT) and entered ADT on 21 August 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was honorably released from ADT on 1 December 1977 and transferred to an MIARNG unit.

3.  He was advanced to pay grade E-3 in the MIARNG on 5 September 1979.

4.  On 22 December 1981, the applicant's company commander initiated action to separate him from the MIARNG and USAR for misconduct under the provisions of Army Regulation 135-178 (ARNG and USAR Separation of Enlisted Personnel), chapter 7.  The company commander stated the applicant's service could be characterized as under other than honorable conditions.  The reason for the proposed action was the applicant's accumulation of nine or more unexcused absences within a 1-year period.

5.  A DA Form 2496 (Disposition Form), dated 5 January 1982, shows personal delivery of the notification of separation action under Army Regulation 135-178 could not be accomplished or was impractical for the following reason:  personal delivery was attempted to the applicant on two different occasions with no responses at last known address.  The applicant was contacted by telephone and instructed to come to the Saginaw Armory to sign his papers on 29 December 1981.  The applicant did not show.

6.  In a letter, dated 18 February 1982, the applicant was notified of his discharge from the MIARNG for misconduct with an effective date of 8 March 1982.

7.  Orders Number 50-4 issued by the MIARNG on 2 March 1982 reduced him to pay grade E-2 effective 3 March 1982, separated him from the MIARNG effective 4 March 1982 with a discharge under other than honorable conditions, and transferred him to the USAR.  He was also issued an NGB Form 22 crediting him with 5 years and 1 month of net service and transferring him to the USAR Control Group (Annual Training).

8.  An NGB Form 22-1, dated 4 March 1982, informed him that his separation was for unsatisfactory performance.

9.  Orders Number 184-101 issued by Fifth U.S. Army on 21 September 1983 honorably discharged him from the USAR in pay grade E-3 effective 21 September 1983 under the provisions of Army Regulation 135-178.  He was issued an Honorable Discharge Certificate.

10.  His records contain a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 16 January 1983.  This information pertaining to an extension of enlistment is unreadable.

11.  Orders D-04-020556 issued by the USAR Personnel Center on 30 April 1985 reduced his grade to pay grade E-2 effective 2 May 1985.

12.  Orders D-05-901941 issued by the USAR Personnel Center on 30 May 1985 discharged him from the USAR effective 30 May 1985 under the provisions of Army Regulation 135-178 with an under other than honorable conditions discharge.

13.  In a letter in reply to his inquiry, dated 18 April 1986, the State of Michigan Department of Military Affairs forwarded the applicant his enlistment contract, NGB Form 22, and DD Form 214 which explained why he was discharged from the ARNG.

14.  In a letter in response to his letter, dated 22 April 1987, the Chief, Claims/Inquiries Division, Centralized Pay Operations, advised the applicant that a review of his military records revealed he enlisted in the ARNG on 5 February 1977 and was separated on 4 March 1982 under other than honorable conditions with an unsatisfied indebtedness to the U.S. Government in the amount of $433.69.  The letter also advised the applicant that on 29 September 1982 he reentered the ARNG on temporary records and subsequently signed a 6-month extension on 16 January 1983.  On receipt of his permanent records it was determined that because of his discharge on 4 March 1982, his reentry and extension were invalid.  He was again separated on 21 September 1983.  His records did not show he performed any additional Reserve drills or ADT for which he had not already been paid; therefore, no entitlement existed for additional military pay and allowances and he remained indebted to the U.S. Government in the amount of $433.69.

15.  Army Regulation 135-178, then in effect, established the policies and procedures governing the separation of enlisted Soldiers from the ARNG and USAR.  Chapter 7 prescribed the procedures for separation for misconduct.  A discharge under other than honorable conditions was authorized.  If warranted by the Soldier's overall record, a characterization of service of under honorable (general) conditions could be furnished.  An honorable characterization of service was not authorized for a Soldier who had completed entry-level status unless the Soldier's record was otherwise so meritorious that any other characterization could clearly be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his January 1983 reenlistment in the USAR was not honored.

2.  The evidence of record shows he enlisted in the USAR and MIARNG on 5 February 1977 for 6 years.  He entered on ADT on 21 July 1977 and was honorably released at the completion of ADT on 1 December 1977.  He was transferred to a MIARNG unit.  Action was initiated by his command on 22 December 1981 for his separation from the MIARNG for misconduct.  A DA Form 2496 shows personal delivery of that action was attempted on two different occasions with no response.  He was contacted by telephone and advised to come in to sign his papers.  He did not show.

3.  Orders were published reducing his grade to E-2 on 2 March 1982 and discharging him from the MIANRG for misconduct effective 4 March 1982 with an under other than honorable conditions discharge.  A review of his permanent records determined his January 1983 reentry (reenlistment) and extension were invalid based on his 4 March 1982 discharge.  He was inadvertently issued orders honorably discharging him from the USAR effective 21 September 1983.

4.  The evidence of record shows he was discharged from the MIARNG for misconduct in 1982.  It appears in accordance with regulatory guidance for separation for misconduct, subsequent orders were properly issued reducing him to E-2 and discharging him from the USAR with an under other than honorable conditions discharge.  It must be presumed the honorable discharge orders and certificate effective 21 September 1983 were properly revoked.  As such, the status of his USAR separation was under other than honorable conditions.

5.  It appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Without evidence to the contrary, it is believed that the applicant's separation and characterization of service of under other than honorable conditions from both the MIARNG and USAR were both proper and equitable.

6.  He provided insufficient evidence to show the invalidation of his 1983 reenlistment in the USAR and subsequent discharge under other than honorable conditions was unjust.  He also has not provided evidence sufficient to mitigate the characterization of either his ANRG or USAR discharge.

7.  In view of the foregoing, there is no basis for 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 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)                                         AR20100022244



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ABCMR Record of Proceedings (cont)                                         AR20100022244



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