IN THE CASE OF:	  

		BOARD DATE:	 1 August 2011 

		DOCKET NUMBER:  AR20110002213 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states that he was required to have his discharge upgraded in 1985 when he enlisted in the Army National Guard.  He further states that he was discharged from the Army National Guard in 1987 and reentered in 1992.  In 1995 he served in an Active Guard Reserve (AGR) status until he was discharged due to a physical disability in 2003.  He continues by stating he thought everything was good to go because he was allowed to reenlist and start his military career all over again with a clean slate.  However, he was notified by the Department of Veterans Affairs in 2011 that his service from 1978 to 1980 was dishonorable.

3.  The applicant provides:

* A summary of benefits from the Department of Veterans Affairs dated 
13 January 2011
* Orders discharging him from the U.S. Army Reserve (USAR), effective    30 September 2003
* A memorandum from the Army Physical Disability Agency, dated 
16 September 2003, indicating he was being discharged without severance pay


* His DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 9 January 2001
* His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 1 October 2001
* His National Guard Retirement Points History Statement
* Two Leave and Earnings Statements 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records, though somewhat incomplete, show he was born on 23 December 1958 and enlisted in the Regular Army in Syracuse, New York on
6 November 1978 for a period of 4 years, training under the airborne enlistment option, assignment to the 82d Airborne Division, and a cash enlistment bonus.

2.  He completed basic training at Fort Knox, Kentucky and advanced individual training as a light weapons infantryman and airborne training at Fort Benning, Georgia before being transferred to Fort Bragg, North Carolina for assignment to the 82d Airborne Division on 23 March 1979.

3.  The applicant went absent without leave (AWOL) from 10 July to 12 July 1979 and from 16 July 1979 to 3 February 1980.

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly authenticated DD Form 214 showing that he was discharged under other than honorable conditions on 3 April 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 10 months and 7 days of active service and he had 205 days of lost time due to being AWOL.  He was given reenlistment eligibility (RE) codes of 3, 3B, and 3C (disqualified for reenlistment, but the disqualification is waivable).

5.  There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

6.  Although the enlistment contract is not contained in the available records, his records contain an NGB Form 22 showing the applicant served in the New York Army National Guard (NYARNG) from 29 October 1985 until he was honorably discharged on 1 July 1987.  He had served 1 year, 10 months, and 23 days and he was issued an RE Code of “3.”



7.  On 28 October 1992, he again enlisted in the NYARNG with a medical waiver for a period of 3 years.

8.  On 26 September 1995, he entered active duty in the AGR Program and was promoted to the pay grade of E-5 on 24 April 1999.  He served on active duty until he was honorably released from active duty (REFRAD) on 9 January 2001 and he was assigned an RE Code of “1.”

9.  On 1 October 2001 he was honorably discharged from the NYARNG and was transferred to the USAR Control Group (Reinforcement).  He was assigned an RE Code of “3.”

10.  Although the proceedings are not present in the available records, the U.S. Army Physical Disability Agency published orders on 16 September 2003 which discharged the applicant from the USAR effective 30 September 2003 without severance pay.

11.  The summary of benefits provided by the applicant shows he received a combined service-connected disability rating of 100%.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for discharge under the provisions of Army 


Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  The applicant’s contentions that his discharge was upgraded has been noted and appear to lack merit.  While the available records do not contain his 1985 contract showing how he enlisted in the NYARNG, if his discharge had been upgraded he would have been issued a new DD Form 214 and discharge certificate by authority of the ADRB or this Board.  However, there is no evidence to show that either board did so.

3.  The applicant has failed to show through the evidence submitted with his application and the evidence of record that his discharge was upgraded.

4.  While his records do show that he served in the NYARNG after being discharged under other than honorable conditions and some of that service was on active duty, his records contain no explanation as to how he was allowed to enlist in 1985.  However, since he had been given RE codes of 3, 3B, and 3C, his disqualifications were waivable, and it appears the NYARNG approved a waiver to allow him to enlist.  Therefore, absent credible evidence to show that his discharge as in fact upgraded as he claims, there appears to be no basis to grant his 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)                                         AR20110002213



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ABCMR Record of Proceedings (cont)                                         AR20110002213



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