IN THE CASE OF:	  

		BOARD DATE:  18 July 2013

		DOCKET NUMBER:  AR20120021247 


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 under other than honorable conditions discharge from the U.S. Army Reserve (USAR) to a general under honorable conditions discharge.

2.  He states he would like his discharge upgraded so he can re-join the USAR as a chaplain.  While serving with the 11th Psychological Operations Battalion in Maryland, he divorced and he was forced to move out of state.  He made several attempts to request a transfer.  He tried to remain faithful to his unit, but he was unable to travel at the time.  Having been honorably discharged from the U.S. Navy Reserve (USNR) and the Army National Guard (ARNG), he believes that not being allowed to serve out his term honorably is a "severe injustice."  Since his discharge, he has continued in his profession, successfully completing over 15 years as a police officer.  He also obtained a State commission with the Maryland Defense Force while attending seminary.  He understands his obligation to report for duty, but by no means has he ever avoided service.

3.  He provides:

* U.S. Navy Honorable Discharge Certificate
* ARNG Honorable Discharge Certificate
* the first page of a self-authored letter, dated 9 April 2006


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 31 October 2001, the applicant enlisted in the Maryland ARNG (MDARNG).  On 1 October 2002, he was honorably discharged to become a member of the USAR.  It cannot be determined when/if he was discharged from the USAR or when/if he enlisted in the USNR.

3.  His record contains a memorandum, subject:  Record of Discharge from the USNR, undated, that shows he was honorably discharged from the USNR on
5 April 2004.

4.  The complete facts and circumstances of his discharge from the USAR are not contained in the available record.  However, his record contains Orders
06-242-00052, issued by Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC, dated 30 August 2006, that reduced him from private first class (PFC)/E-3 to private (PV1)/E-1 and discharged him from the USAR under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations) with an under other than honorable conditions discharge, effective 30 August 2006.  The orders show he was assigned to the 11th Psychological Operations Battalion, Upper Marlboro, MD, at the time and also show he resided at an address in Newark, DE.

5.  An Official Statement of Service from the Chief, Veterans Support Branch, Personnel Support Division, U.S. Army Human Resources Command, St. Louis, MO, dated 24 August 2007, shows he was discharged under other than honorable conditions for "misconduct - other."

6.  On 16 July 2008, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 17 November 2008, after carefully reviewing his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged and denied his request.

7.  Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel of the USAR.

	a.  Chapter 12 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  An under other than honorable conditions characterization of service is normally considered appropriate; however, a general under honorable conditions or honorable discharge may be granted.

	b.  Paragraph 2-9a states an honorable character of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 2-9b states a general (under honorable conditions) character of service is warranted when significant negative aspects of the Soldier’s conduct or performance of duty are outweighed by positive aspects of the Soldier’s military record.  When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for an upgrade of his USAR discharge from under other than honorable conditions discharge to a general discharge.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible to reenter military service.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  Based on the statements he makes in his application, it appears he stopped attending drills with his USAR unit.  Assuming this was the case, his absence from drills, if unauthorized, would have been deemed misconduct.  The misconduct, in turn, would have served as justification for his discharge under the provisions of Army Regulation 135-178.  In the absence of documentary 
evidence to the contrary, it is presumed that all requirements of law and regulation were met, that his rights were fully protected throughout the separation process, and that his service was properly characterized based on the evidence available to the separation authority.

4.  The applicant's service in the USNR and ARNG is noted; however, his honorable prior service does not mitigate the offense leading to his discharge from the USAR.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120021247



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ABCMR Record of Proceedings (cont)                                         AR20120021247



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