IN THE CASE OF:	  

		BOARD DATE:	    17 January 2013

		DOCKET NUMBER:  AR20120010624 


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 an upgrade of his general discharge to an honorable discharge.  He also requests correction of his record to show:

* he was in fact in the Army until his discharge on 27 August 2004
* he completed any and all initial active duty for training (IADT) and complied with chapter 1606
* he was and is eligible for the Montgomery GI Bill (MGIB) and repayment of recouped funds

2.  The applicant states he was informed by the "Army Board" that he was discharged by his home base of Fort Leonard Wood, MO, while he was actually granted permission to attend his drills (U.S. Army Reserve (USAR) unit training assemblies) in Lubbock, TX.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 04-209-00031, dated 27 July 2004, issued by the U.S. Army Reserve Command (USARC)
* 20 pages from his Defense Joint Military Pay System-Reserve Component Master Military Pay Account


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 10 July 2012, a member of the Board staff spoke with the applicant by telephone.  The applicant requested that the portion of his request pertaining to recoupment of MGIB funds be disregarded.  As a result, this issue will not be discussed further in this Record of Proceedings.

3.  By requesting correction of his record to show he was in the Army until his discharge, it appears he wants a document that shows the entirety of his service. 
His U.S. Army Human Resources Command (HRC) ARPC Form 249-E (Chronological Statement of Retirement Points) serves this purpose and he should be provided a copy of this document.  As a result, this issue will not be discussed further in this Record of Proceedings.

4.  The applicant enlisted in the USAR on 27 April 2001.  He entered IADT on 3 January 2002.

5.  Item 14 (Military Education) of his DD Form 214 shows he successfully completed the Officer Candidate School (OCS).  He was released from IADT on 19 June 2002.  On 20 June 2002, he was appointed as a Reserve commissioned officer at the rank and grade of second lieutenant (2LT)/O-1 in the Engineer Branch.

6.  His record is void of documentation showing he completed the officer basic course (OBC).

7.  His transaction history in the HRC Soldier Management System (SMS) includes an entry, dated 17 July 2003, showing:

* he was recently released from a Federal prison sentence for possessing a false birth certificate and having five aliases
* he was arrested after trying to flee the country
* a Criminal Investigation Command report was filed and board action initiated
* he had a false enlistment in the Army and false information on his OCS application

8.  The applicant's service records do not contain all the facts and circumstances surrounding his discharge.  However, USARC Orders 04-209-00031, dated 27 July 2004, show he was discharged under honorable conditions (general) from the USAR effective 27 August 2004 under the provisions of Army Regulation 135-175 (Separation of Officers).

9.  His ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 2 qualifying years of Reserve service for retirement at age 60.

10.  The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 20 May 2010, the ADRB determined the applicant's discharge was proper and equitable.

11.  The applicant again applied to the ADRB for upgrade of his discharge.  On 7 February 2012, the ADRB determined the reason for discharge and characterization of his service were proper.

12.  Army Regulation 135-175 sets forth the basic authority for the separation of officers from the USAR, except for officers serving on active duty or active duty for training exceeding 90 days.  Chapters 2 and 3 of this regulation provide the basis for involuntary separation of USAR officers.  Specific categories include substandard performance of duty; moral or professional dereliction; in the interest of national security; as a result of trial by court martial; a pattern of misconduct; and commission of a serious offense, to include abuse of illegal drugs, homosexual conduct, convictions by a civil authorities, and desertion or absence without proper authority from unit training.  Army policy states a discharge under other than honorable conditions is normally considered appropriate; however, an honorable discharge or a general discharge under honorable conditions may be granted.

13.  Army Regulation 135-175 states initial entry training (IET) is a term used to identify mandatory training each member of the U.S. Army must complete upon initial entry in the service to qualify in a military specialty or branch and which is required by law for deployability on land outside the continental limits of the 

United States.  The term encompasses the completion of basic training and specialty or branch qualification while serving on active duty or active duty for training.  For USAR Soldiers, it includes completion of IADT, OBC, and the warrant officer basic course.

14.  Army Regulation 135-175 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The issuance of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned.

15.  The MGIB-Selected Reserve is an education program established by Title 10, U.S. Code, chapter 1606.  The program provides up to 36 months of educational benefits to members of the Selected Reserve.  Eligibility for this program is determined by the Selected Reserve components.  The Department of Veterans Affairs (VA) makes the payments for this program.

16.  An eligible Reservist may receive educational benefits while enrolled in a program approved by the VA for training.  A service member may be considered an eligible Reservist if:

* after 30 June 1985, the service member signed a 6-year obligation to serve in the Selected Reserve 
* the service member completed his/her IADT
* the service member has his/her high school diploma or general education diploma before completing his/her IADT
* the service member is in good standing in a drilling Selected Reserve unit

17.  Eligibility for the MGIB-Selected Reserve normally ends the day an individual leaves the Selected Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his general discharge to an honorable discharge, nor does it support his request for correction of his record to show he completed any and all IADT and to show he is eligible for the MGIB.

2.  The evidence of record indicates the applicant was involuntarily discharged from the USAR on 27 August 2004.  His SMS transaction history indicates he 

had served a Federal prison sentence for possession of a false birth certificate and having five aliases, and it appears he was arrested while trying to leave the country.  While a discharge packet is not available, in the absence of evidence to the contrary it is presumed that all regulatory and statutory requirements were met and his rights were not violated.

3.  It further appears he entered military service without informing the Army of his law violations, which is likely the reason for his discharge from the USAR.  Again, in the absence of evidence to the contrary it is presumed that he was appropriately give a general discharge.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant contends his military service records should be corrected to show he completed IADT (i.e., IET).  A review of his record shows all training he completed is properly documented.  His DD Form 214 shows he entered IADT on 3 January 2002 and that he successfully completed OCS prior to being appointed as a Reserve commissioned officer on 20 June 2002.  As an officer, completion of OBC is required to be considered to have completed IET.  There is no evidence he did so.

5.  In view of the foregoing, HRC's determination that the applicant had not completed IADT and was not eligible for the MGIB-Selected Reserve was correct.  The evidence of record does not show and he has not provided evidence showing error in this determination.

6.  Further, because he is no longer in the Selected Reserve, he is no longer eligible for the MGIB-Selected Reserve.  There is no basis for correcting his record to show otherwise.

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)                                         AR20120010624



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ABCMR Record of Proceedings (cont)                                         AR20120010624



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