IN THE CASE OF:	  

		BOARD DATE:	 28 August 2014 

		DOCKET NUMBER:  AR20140001448 


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 defers his requests to counsel.

2.  The applicant defers his statement to counsel.

3.  The applicant provides his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's character of service be changed to honorable.  Counsel also requests that the reason for the applicant's separation be changed. 

2.  Counsel states: 

	a.  The applicant was injured on 13 July 1991, while on active duty and during a training accident that resulted in the deaths and injuries of several other service members at the Pohakuloa Training area in Hawaii. 

	b.  After requesting a transfer to the 224th Infantry Division of the Oregon Army National Guard (ORARNG), the applicant's pay grade was lowered and his discharge was ordered for no apparent reason.
	c.  The applicant was not present for the discharge nor did he know why he was being discharged and to date, has not signed any discharge papers.

	d.  The applicant still uses his military occupational specialty (MOS) 88M1O (Motor Transport Operator) training today, and as a result owns his own business.

	e.  Several of the applicant's clients have asked to list his military service training on his professional documents; however, they will only do so if his discharge reads honorable versus general, under honorable conditions.

	f.  Since the applicant would have been retired from the Army if this action had not been forced upon him, counsel respectfully asks to have it corrected.

3.  Counsel does not submit any additional documents.

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.  The applicant enlisted in the Hawaii Army National Guard (HIARNG) on 
24 May 1990.  

3.  On 7 June 1990, he was ordered to active duty for training.  After the completion of basic and advanced individual training, he was awarded MOS 88M.  On 11 October 1990, he was released from active duty for training and returned to the control of the HIARNG.  

4.  Orders Number 045-037, issued by the State of HIARNG on 11 March 1991, show he was transferred to Company C, 1st Battalion, 249th Infantry, ORARNG, effective 1 February 1991.  

5.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes:

	a.  Orders Number 112-9, issued by the ORARNG on 11 June 1991, which show he received a general, under honorable conditions discharge, effective      16 May 1991.

   b.  A properly-constituted NGB Form 22 that shows in:
   
   	(1)  item 8b (Effective Date), he was discharged on 16 May 1991;
   
   	(2)  item 10a (Net Service This Period), he completed a total of 11 months and 23 days of net service;
   
   	(3)  item 20 (Signature of Person Being Separated), he was not available to sign this form;
   
   	(4)  item 23 (Authority and Reason), he was discharged under the provisions of National Guard Regulation 635-200 (Enlisted Personnel Management), in effect at the time, chapter 8-26v; and 
   
   	(5)  item 24 (Character of Service), he received a general, under honorable conditions discharge.  

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  National Guard Regulation 600-200 (Enlisted Personnel Management), chapter 8, in effect at the time, prescribes the policies concerning discharge of ARNG Soldiers with concurrent discharge from the Reserve of the Army status.  That regulation provides, in part, that commanders will refer to Army Regulation 135-178 (Army National  Guard and Army Reserve, Separation of Enlisted Personnel, Enlisted Administrative Separations) when considering initiating a discharge recommendation of enlisted Soldiers from the Reserve of the Army.  

8.  Army Regulation 135-178, in effect at that time, established the policies, standards, and procedures that governed the administrative separation of enlisted personnel.  Section IV of chapter 7 prescribed procedures for processing of fraudulent entry cases and provided for the administrative disposition of Soldiers found to have fraudulently entered the Armed Forces.  Fraudulent entry is defined as the procurement of enlistment through any deliberate material misrepresentation, omission, or concealment of facts which, if known at the time, might have resulted in rejection.  
9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member'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.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
NGB Form 22 that identifies the authority, reason, and characterization of the applicant's service.

2.  Counsel's contention that the applicant was injured in a training accident in Hawaii on 13 July 1991 was considered and found to be lacking in merit.  Evidence of record shows the applicant had transferred to the ORARNG on 
1 February 1991 and was ultimately discharged from the ORARNG for fraudulent enlistment on 16 May 1991.  Therefore, he held no status in either the HIARNG or the ORARNG on the date of the alleged training accident.

3.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the available facts of the case.  

4.  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)                                         AR20140001448





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ABCMR Record of Proceedings (cont)                                         AR20140001448



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