IN THE CASE OF:
BOARD DATE: 26 September 2013
DOCKET NUMBER: AR20130002632
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, correction of item 8b (Authority and Reason) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show a reason other than conviction by civil court.
2. The applicant states, in effect, he was issued a letter resolution ordering dismissal of his civil case and expunction of his record because he met the conditions for parole.
3. The applicant provides:
* DD Form 4 (Enlistment Contract Armed Forces of the United States) effective 23 November 1974
* DD Form 214 (Report of Separation and Record of Service) effective 5 September 1975
* NGB Form 22 effective 11 May 1977
* letter from the Puerto Rico Army National Guard (PRARNG), 29 March 2012
* Commonwealth of Puerto Rico Certificate of No Penal Record
* foreign documents
* Congressional correspondence
* social security card
CONSIDERATION OF EVIDENCE:
1. The applicant's available records show he enlisted in the Regular Army on 21 December 1972. He was discharged on 9 March 1973 for not meeting medical fitness standards.
2. The complete facts and circumstances of his discharge from the ARNG are not available for review with this case. Likewise, his ARNG records are not available for review with this case. However, he provides an NGB Form 22 that shows:
a. He enlisted in the PRARNG on 23 March 1975. He entered active duty for training on 8 May 1975 and he was released from active duty on 5 September 1975. He held military occupational specialty 11B (Infantryman).
b. PRARNG Orders 86-2, dated 11 May 1977, discharged him by reason of conviction by civil court. He was issued a general discharge.
3. On 29 March 2013, the PRARNG notified the applicant that his petition for correction of his NGB Form 22 was considered, but it was denied. Although he was issued a letter resolution ordering dismissal of his civil case and expunction of his records because he met the conditions of his parole, the fact remains that on the date of his separation he was still convicted. His separation was valid and legal and met the standards set forth in applicable regulations at the time.
4. National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of ARNG Soldiers. Paragraph 8-26e provides for the discharge of ARNG enlisted Soldiers convicted by a civil court.
5. Army Regulation 135-178 (ARNG and Army Reserve Enlisted Personnel Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and U.S. Army Reserve enlisted Soldiers for a variety of reasons. Soldiers may be discharged for misconduct when it is determined under the guidance set forth in chapter 2, that the Soldier is unqualified for further military service by reason of a civil conviction. Discharge action may be initiated against Soldiers when initially convicted by civil authorities or action is taken that is tantamount to a finding of guilty (to include a similar adjudication in juvenile proceedings).
DISCUSSION AND CONCLUSIONS:
1. The complete facts and circumstances surrounding the applicant's enlistment in and discharge from the PRARNG are not available for review with this case. However, he provides an NGB Form 22 that shows he was discharged from the PRARNG on 11 May 1977 by reason of civil conviction.
2. Pertinent Army and ARNG regulations provide for the discharge of enlisted Soldiers by reason of civil conviction. The fact that a Soldier may have been paroled or satisfied the conditions of his court order does not negate the fact that the member was convicted by a civil court.
3. The applicant does not provide sufficient evidence to show the narrative reason for his separation is in error or unjust. Therefore, he is not entitled to 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 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) AR20130002632
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ABCMR Record of Proceedings (cont) AR20130002632
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