IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150000686 


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 that his discharge from the U.S. Army Reserve (USAR) be voided and that he instead be transferred to the Retired Reserve.

2.  The applicant states that he should have been transferred to the Retired Reserve instead of being discharged because he served 22 years and received his 20-Year Letter.  Additionally, he needs retirement orders to receive identification cards. 

3.  The applicant provides copies of his discharge orders, 20-Year Letter and his Chronological Statement of Retirement Points. 

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 was serving in the U.S. Army Reserve (USAR) troop program unit in the pay grade of E-6 when he was ordered to active duty in support of Operation Enduring Freedom on 6 March 2003.  He deployed to Kuwait during the period 20030604 to 20040607.  He was honorably released from active duty on 18 July 2004 upon the completion of required service.  He was promoted to the pay grade of E-7 on 1 September 2004. 

3.  On 28 April 2005, he was issued a Notification of Eligibility for Retired Pay (20-Year Letter) at Age 60.

4.  The facts and circumstances surrounding his discharge are not present in the available records.  However, his discharge orders show that he was discharged under honorable conditions (general) on 3 April 2006 from the USAR under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations).

5.  Army Regulation 140-10, (Army Reserve – Assignments, Attachments, Details, and Transfers), set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of that regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve where they will be subject to recall. 

6.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Component.  Separation can be for a variety of reasons.  Separation policies should promote the readiness of the Army to ensure Soldiers are suitable, meet the required standard of performance and conduct, and achieve authorized force levels and grade distribution.  

	a.  An under honorable conditions (general) characterization of service is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweighs the positive aspects of their military record.  A characterization of under honorable conditions may be issued only when the reasons for the Soldiers separation specially allows for such a characterization.  It will not be issued to Soldiers upon separation for expiration of their service obligation. 

   b.  Orders discharging a Soldier will not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service, or to correct administrative errors such as rank, social security number, or misspelled name.
   
7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant received his 20-Year Letter in 2005.  At that point he had the option to voluntarily request a transfer to the Retired Reserve or continue serving with his USAR unit.  It appears he continued to serve with his unit.  However, in 2006 his chain of command initiated action to separate him with a less than honorable discharge.  In the absence of evidence to the contrary, it must be presumed that the applicant’s discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.  As the applicant’s characterization of service is under honorable conditions (general) there is a presumption that his duty performance and standard of conduct was not sufficiently meritorious as to warrant an honorable discharge or transfer to the Retired Reserve.  

2.  As he provided no evidence to support his contention that his discharge order should be voided based on error or injustice, there is no 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)                                         AR20150000686





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ABCMR Record of Proceedings (cont)                                         AR20150000686



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