BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160005366 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160005366 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, reconsideration of his prior request for correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show a reason for his discharge other than conviction by civil court. 2. The applicant states, in effect: a. He requests reconsideration of his prior request in order to qualify for GI Bill benefits administered by the Department of Veterans Affairs (VA) as he is studying to be a professional cook at the Star Career Academy. b. He states, in essence, that after his honorable discharge from the Regular Army due to not meeting medical fitness standards at the time of enlistment, he signed a new contract, enlisting in the Army National Guard (ARNG) for 6 years. He was unable to finish the contract or receive a disability retirement. c. He appears to argue that he was issued a letter of resolution ordering dismissal of his civil case and expunction of his record because he met the conditions of parole. 3. The applicant provides: * two self-authored letters to the Army Board for Correction of Military Records (ABCMR) * self-authored document titled: Motion Article 78 – Proceeding Petition Military Lawyers Legal Proceeding Civil Appeal Others Point Merit [Applicant] AR20130022632 * VA letter, dated 13 May 2015 * Legends Hospitality letter, dated 1 October 2015 * Star Career Academy letter, dated 8 December 2015 * Puerto Rico National Guard letter, dated 29 March 2012 * DD Form 214 (Report of Separation from Active Duty) covering the period 8 May 1975 through 5 September 1975 * Army National Guard Retirement Credits Record * prior Record of Proceedings by the ABCMR in Docket Number AR20130002632, dated 26 September 2013 * three identification cards CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130002632 on 26 September 2013. 2. The applicant enlisted in the Regular Army on 21 December 1972. 3. A DD Form 214 shows he was honorably discharged on 9 March 1973 due to not meeting medical fitness standards at the time of enlistment. He completed 2 months and 19 days of net active service during this period. Any further facts and circumstances surrounding his discharge from the Regular Army are not in his available records for review. 4. On 23 November 1974, he enlisted in the Puerto Rico ARNG for a period of 6 years. 5. His DD Form 214 covering the period 8 May 1975 through 5 September 1975 shows he was honorably released from active duty for training under the Reserve enlistment program upon completion of military occupational specialty training. He completed 3 months and 28 days of net active service during this period and was returned to the control of the Puerto Rico ARNG. 6. The complete facts and circumstances surrounding his discharge from the Puerto Rico ARNG are not in his available records for review. 7. His NGB Form 22 (Report of Separation and Record of Service) shows he was discharged from the Puerto Rico ARNG on 11 May 1977 by reason of conviction by civil court. He was credited with 2 years, 5 months, and 18 days of net service during this period. His service was characterized as general. 8. He provided an ARNG Retirement Credits Record which shows his inclusive dates of ARNG service as 23 November 1974 through 11 May 1977. 9. A letter from the Puerto Rico National Guard Personnel Division Director, G-1, dated 29 March 2012, states that although the applicant received a letter of resolution issued in his civil case ordering dismissal of his case and expunction of his record because he met the conditions of his parole, he was still convicted on the date of his ARNG separation and this document, referenced in his petition for correction of his NGB Form 22, was nonexistent at the time. His separation from the ARNG was valid and legal and met the standards set forth the in the applicable regulations at the time. 10. A letter from the Yankee Stadium Legends Hospitality Human Resources Coordinator, dated 1 October 2015, states the applicant is a part-time seasonal employee for Legends Hospitality at Yankee Stadium where he works as a concession stand worker. He has been employed with their company since February 2009 and has the ability to work up to 8 hours per event and 40 hours per week. He only works during the New York Yankees and New York City Football Club seasons, which run from March through October, and only on game days. 11. A letter from the Star Career Academy Registrar, dated 8 December 2015, states the applicant is enrolled as a full-time student at the Star Career Academy in the Professional Cooking Program. The program started on 3 September 2015 and was expected to end on 6 July 2016. Classes were held from Monday through Friday from 8:30 a.m. to 1:30 p.m. 12. A letter from the VA Buffalo Regional Office, dated 13 May 2015, states they regret they cannot approve his claim for educational benefits under the Post-9/11 GI Bill as indicated in their letter, dated 8 April 2015. He was informed he did not qualify for the Post-9/11 GI Bill because he did not have any active duty service after 10 September 2001. 13. He provided the following identification cards: * Star Career Academy Identification Card, dated 8 September 2015 * VA Healthcare Enrollee Identification Card, with an expiration date of 14 September 2024 * New York State Identification Card, issued on 2 October 2015 14. He also provided a self-authored document titled: Motion Article 78 – Proceeding Petition Military Lawyers Legal Proceeding Civil Appeal Others Point Merit [Applicant] AR20130022632, the contents of which are disjointed and not fully comprehensible. REFERENCES: 1. National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of ARNG Soldiers. Chapter 8, in effect at the time, provided for the administrative discharge of ARNG enlisted Soldiers convicted by a civil court. 2. Army Regulation 135-178 (ARNG and Army Reserve – Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG and the U.S. Army Reserve. Soldiers may be discharged for misconduct when it is determined 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: 1. The complete facts and circumstances surrounding his discharge from the Puerto Rico ARNG are not in his available records for review. However, his NGB Form 22 shows he was discharged from the Puerto Rico ARNG on 11 May 1977 by reason of civil conviction. 2. Pertinent Army and ARNG regulations provided for the discharge of enlisted Soldiers due to 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 individual was convicted by a civil court. 3. The letter from the Puerto Rico National Guard Personnel Division Director, G-1, dated 29 March 2012, stated that although the applicant received a letter of resolution issued in his civil case ordering dismissal of his case and expunction of his record because he met with the conditions of his parole, he was still convicted on the date of his ARNG separation. His separation from the ARNG was valid and legal and met the standards set forth in the applicable regulations at the time. 4. The letter from the VA Buffalo Regional Office, dated 13 May 2015, stated they regret they cannot approve his claim for educational benefits under the Post-9/11 GI Bill because he did not have any active duty service after 10 September 2001. 5. A review of his service records does not reveal any service in the Regular Army or ARNG beyond 11 May 1977. BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160005366 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 amendment of the Army Board for Correction of Military Records decision in Docket Number AR20130002632, dated 26 September 2013. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005366 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005366 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2