RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 26 January 2006
DOCKET NUMBER: AR20050008090
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mrs. Victoria A. Donaldson | |Analyst |
The following members, a quorum, were present:
| |Mr. John T. Meixell | |Chairperson |
| |Mr. Jeffrey C. Redmann | |Member |
| |Ms. Rose M. Lys | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his status be changed from discharged to
Retired Reserve.
2. The applicant states his discharge order is too old to be revoked. The
applicant further states that the statute of limitations for filing an
application to the ABCMR should be waived so that he can support his
comrades in a time of war.
3. The applicant did not provide any documentary evidence in support of
this application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred on 12 April 2000, the date of his discharge from the United
States Army Reserve (USAR). The application submitted in this case is
dated 24 May 2005.
2. 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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so. In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.
3. Records show the applicant enlisted in the USAR on 31 July 1979. He
completed basic training and advanced individual training and was awarded
the military occupational specialty (MOS) 94B10 (Cook). The highest grade
the applicant held was staff sergeant/pay grade E-6.
4. On 11 October 1997, an Administrative Separation Board convened to
determine if the applicant should be separated from the USAR for
misconduct.
5. The Administrative Separation Board determined that the applicant
wrongfully ingested marijuana which was discovered by urinalysis testing.
6. The Administrative Separation Board recommended the applicant be
discharged from the USAR because of misconduct with a general discharge
under honorable conditions and further recommended the separation be
suspended.
7. On 19 March 1998, the applicant was notified by the Deputy Chief of
Staff for Personnel of the 81st Regional Support Command of the
Administrative Separation Board results. The applicant was informed that
he was being placed in a probationary status for one year and that, if his
performance was satisfactory during this period, his unit could request in
writing to remit the execution of the approved separation. He was also
informed that, if he failed to meet the appropriate standards of conduct
and duty performance at any time during the probationary period, the unit
commander must submit a written request with justification to the
separation authority to execute the approved separation.
8. On 19 March 1998, the commander of the 81st Regional Support Command
imposed a bar to reenlistment against the applicant.
9. On 6 April 2000, the separation approval authority directed the
applicant be separated with a DD Form 257A (General Discharge (Under
Honorable Conditions)).
10. Headquarters, 81st Regional Support Command Orders Number 00-103-006,
dated 12 April 2000, show the applicant was discharged from the USAR with a
General (Under Honorable Conditions) Discharge Certificate on 12 April
2000.
11. There is no evidence in the available records which shows the
applicant was transferred to the Retired Reserve.
12. Paragraph 12-1 of Army Regulation 137-5-178 (Enlisted Administrative
Separations) states a Soldier may be discharged for misconduct when it is
determined the Soldier is unqualified for further military service by
reason of one or more of the following offenses: minor disciplinary
infractions, a patter of misconduct, commission of a serious offense, and
abuse of illegal drugs.
13. Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), paragraph 3-7, provides that 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 (emphasis added), or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
Whenever there is doubt, it is to be resolved in favor of the individual.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his discharge status should be changed to
show Retired Reserve so that he can reenter the military.
2. Evidence of records show the applicant tested positive for use of
marijuana which is a basis for discharge in accordance with applicable
regulations.
3. The applicant was considered by an Administrative Separation Board
which determined that this misconduct rendered him unfit for further
military service and placed him on a one year period of probation. Records
show the separation approval authority approved the applicant's discharge
after the probationary period expired.
4. There is no evidence in the available records and the applicant has not
provided sufficient evidence which shows the separation orders were
promulgated in error.
5. Evidence of record further shows that the commander of the 81st
Regional Support Command imposed a bar to reenlistment against the
applicant. Therefore, the applicant is ineligible for reenlistment in the
service.
6. Lacking evidence to the contrary, it is presumed that all requirements
of law and regulation were met and the rights of the applicant were
protected throughout the separation process.
7. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 April 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 11 April 2003. The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__JTM___ _RML__ __JCR___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law. Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.
_John T. Meixell___
CHAIRPERSON
INDEX
|CASE ID |AR20050008090 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20060126 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. | |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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