IN THE CASE OF:
BOARD DATE: 7 February 2012
DOCKET NUMBER: AR20110015631
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 his characterization of service be corrected.
2. The applicant states he has no recollection of any misconduct.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Birth Certificate
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Oregon Army National Guard on 29 November 1984. He entered active duty for training on 6 September 1985 at age 34. His records show he completed basic and advanced individual training and he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic). The highest rank/grade he attained while serving on active duty was specialist four/E-4. However, he held the rank/grade of private/E-1 at the time of discharge.
3. The complete facts and circumstances of his discharge are not available for review with this case. However, his record contains an NGB Form 22 that shows he was discharged on 9 July 1991 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26q, for acts or patterns of misconduct, with an under other than honorable conditions discharge. The NGB Form 22 he was issued confirms he completed a total of 6 years, 7 months, and 11 days of creditable active service.
4. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
5. National Guard Regulation 600-200 sets forth the basic authority for administrative discharges from the Reserve of the Army and/or the State Army National Guard. Paragraph 8-26q provides the policy for discharging enlisted members for acts or patterns of misconduct.
6. Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct. The regulation provided that the separation authority could direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should be separated for misconduct. Army policy, in effect at the time, stated that the characterization of service for members separated under these provisions would normally be an under other than honorable conditions discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his characterization of service be corrected due to having no recollection of misconduct has been carefully considered.
2. The applicants record is void of a discharge packet containing the specific facts and circumstances surrounding the applicants discharge processing. However, there is a properly constituted NGB Form 22 on file. This document identifies the reason and characterization of the discharge and carries with it a presumption of Government regularity in the discharge process.
3. Absent evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
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) AR20110015631
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ABCMR Record of Proceedings (cont) AR20110015631
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