IN THE CASE OF: 

		BOARD DATE:    25 October 2012

		DOCKET NUMBER:  AR20120008042


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his separation type, from an honorable release from active duty to discharge by reason of medical disability.

2.  The applicant states:

* the separation code he received (LHJ – Unsatisfactory Participation) was based solely on his inability to meet Army Physical Fitness Test (APFT) standards
* during his last years of service with the Guam Army National Guard (GUARNG), he encountered problems with both of his knees
* he encountered significant problems attempting to meet the APFT standards
* his unit was reorganized, resulting in a reduction in rank
* as a result of his inability to pass the APFT, and his reduction in rank due to unit reorganization, he was separated
* after nearly 18 years of active duty, he was not afforded the opportunity to undergo a separation physical to properly address his knee issues

3.  The applicant provides:

* a letter from the Office of the Adjutant General, GUARNG, dated 4 March 2012
* a letter he sent to the GUARNG, dated 21 November 2011
* a letter from the Army Review Boards Agency, dated 4 November 2011
* DD Form 214-MC (Report of Separation from Active Duty), for the period ending 29 December 1978
* Orders 204-01, issued by Headquarters, GUARNG, dated 1 December 1989
* DD Form 214, for the period ending 14 August 1990
* an extract of Army reenlistment (RE) codes
* an extract of military separation codes
* multiple pages of medical documentation, including exam findings, diagnoses, assessments, discharge summaries and electrocardiogram (ECG) reports, spanning the period 22 March 2010 to 24 November 2010 

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 24 March 1982, after prior service in the U.S. Marine Corps and U.S. Air Force, the applicant enlisted in the GUARNG in the rank/grade of staff sergeant (SSG)/E-6.  

3.  On 25 March 1982, he was ordered to active duty under the provision of Title 32, U.S. Code, in the Active Guard Reserve (AGR) Program within the GUARNG (later designated as Full-Time National Guard Duty (FTNGD)). 

4.  Orders 71-7, issued by the Department of Military Affairs, Territory of Guam, dated 16 May 1983, promoted him to the rank/grade of sergeant first class (SFC)/E-7, effective 16 May 1983.

5.  Orders 204-01, issued by Headquarters, GUARNG, dated 1 December 1989, reduced him in rank/grade from SFC/E-7 to SSG/E-6, effective 1 December 1989 with a date of rank (DOR) of 24 March 1982.  These orders cite unit reorganization as the reason for his reduction.

6.  Orders 181-07, issued by Headquarters, GUARNG, dated 13 June 1990, ordered his release from active duty, not by reason of physical disability, effective 14 August 1990.  These same orders assigned him to Headquarters and Headquarters Company, 1st Battalion, 294th Infantry Regiment (a unit of the GUARNG), effective 15 August 1990, the day after his separation date.

7.  On 14 August 1990, he was involuntarily released from active duty.  

   a. Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) show he was released from active duty in the rank/grade of SSG/E-6.

   b. Item 12c (Record of Service – Net Active Service This Period) shows he was credited with the completion of 8 years, 4 months, and 20 days of net active service during this period of active duty. 

   c. Item 12d (Record of Service – Total Prior Active Service) shows he was credited with the completion of 9 years, 5 months, and 10 days of prior active service.

   d. Item 23 (Type of Separation) contains the entry "Release from AGR Program."

   e. Item 24 (Character of Service) contains the entry "Honorable."

   f. Item 25 (Separation Authority) contains the entry "Paragraph 6-5, National Guard Regulation (NGR) 600-5 (The AGR Program, Title 32, FTNGD)."

g. Item 26 (Separation Code) contains the entry "LHJ."

h. Item 27 (RE Code) contains the entry "RE-3."

   i. Item 28 (Narrative Reason for Separation) contains the entry "Involuntary Separation from the AGR Program."

8.  Orders 045-03, issued by Headquarters, GUARNG, dated 1 April 1991, honorably discharged him from the GUARNG, effective 31 October 1990, and reassigned him to the Individual Ready Reserve.

9.  Orders D-03-209577, issued by the U.S. Army Reserve (USAR) Personnel Center, St. Louis, MO, dated 17 March 1992, honorably discharged him from the USAR effective 23 March 1992.

10.  His available record is void of the specific facts and circumstances surrounding his release from active duty and subsequent discharge from the GUARNG.

11.  His medical records are not available for review, and his available personnel records do not reveal the existence of any injury or illness that would have warranted his entry into the Physical Disability Evaluation System (PDES).

12.  On 21 November 2011, he petitioned the GUARNG for a review of his discharge, alleging his release from active duty resulted from prejudice, due to his unit reorganization and his reduction in rank, and his medical condition at the time was not considered by the separation authority.

13.  On 4 March 2012, a Manpower/Personnel and Human Resource Officer of the GUARNG responded to his petition for review.  In his response memo to the applicant, this official stated that after a thorough review of the available evidence, he found nothing to substantiate his claim he was inappropriately separated. 

14.  He provides numerous medical documents in support of his request; however, none of the supplied documents addressed his medical condition at the time of his separation.

15.  NGR 600-5, paragraph 6-5, provides the authority to separate Soldiers performing FTNGD.  This paragraph specifies the reasons for such separation and the procedures to be used in processing a separation under these provisions.  This regulation also states, in pertinent part, that (the State)	 Adjutant General is the final separation authority for AGR Soldiers.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his honorable discharge should be changed to a medical discharge.  His service medical records were not available for review; however, the evidence of record does not show he sustained any injury or illness that warranted his entry into the PDES.

2.  His discharge packet is not available for review; however, it must be presumed he was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

3.  In view of the foregoing, there is no basis to grant 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)                                         AR20100009160



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ABCMR Record of Proceedings (cont)                                         AR20120008042



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