ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 June 2019

	DOCKET NUMBER:  AR20170007642


APPLICANT REQUESTS:  an upgrade of his general discharge from Army National Guard (ARNG).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Individual Award Brief
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders D-099-070430 and D-06-217466
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Request for Waiver for New York ARNG (NYARNG) Enlistment or Reenlistment memorandum
* Certification of Military Service

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he believes that he was honorably discharged each time he was separated from military service.  Every discharge document in his possession states he was honorably discharged.  His discharge documents list all of his awards for 5 years of faithful service.  This was brought to his attention in December 2016.  The information is incorrect.

3.  Review of the applicant’s military record shows:

     a.  He enlisted in the NYARNG on 28 July 1982, for 6 years.  He entered on active duty for training from 4 July 1983.  He was honorably released from active duty on 7 October 1983 and was transferred to a NYARNG unit.

     b.  He provides an Individual Award Brief, dated 18 July 1987, showing he was awarded the 5 Year Long and Faithful Service Award on 17 July 1987.

    c.  The complete facts and circumstances surrounding his discharge from the NYARNG are not available for review with this case.  However, his record contains and he provides an NGB Form 22 that shows he was released from the ARNG on 1 April 1988, under the authority of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  This form also shows:

* he completed 5 years, 8 months, and 4 days of net service
* his service was characterized as under honorable conditions (general)
* he was assigned a reentry code of “3”

     d.  He also provides:

* Orders D-09-070430, issued by the USAR Personnel Center on 14 September 1988, honorably discharging him from the USAR effective the same date
* Request for Waiver for NYARNG Enlistment or Reenlistment memorandum, dated 16 March 1989, granting him a waiver of disqualification (general discharge) and permission to reenlist in the ARNG

     e.  He reenlisted in the NYARNG on 18 March 1989, for 1 year.

     f.  He was ordered to active duty in support of Operation Desert Shield/Desert Storm and entered active duty on 31 January 1991.  He was honorably released from active duty on 4 February 1991 and was transferred to the USAR Control Group (Reinforcement).  His DD Form 214 shows he completed 4 days of net active service.

     g.  He further provides:

* Orders D-06-21466, issued by the USAR Personnel Center on 2 June 1992, honorably discharging him from the Ready Reserve effective the same date
* Certification of Military Service, issued on 7 November 2016, showing he served in the Regular Army from 31 January 1991 until his honorable release from active duty on 4 February 1991

4.  By regulation (NGR 600-200), separation of a Soldier from the ARNG is a function of state military authorities in accordance with state laws and regulation. 

5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.
BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the lack of available documentary evidence, the Board found there was insufficient evidence to recommend making a change to the applicant’s NGB 22, dated 1 April 1986.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, provided for the management of enlisted personnel in the Army National Guard (ARNG).  Chapter 8 of the regulation provided criteria and reasons for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.  If the reason for separation is waivable, the reentry (RE) code would be RE 3 (not fully qualified for reentry or continuous service at time of separation, but this disqualification is waivable).

3.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The regulation states 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.  The Board is not an investigative agency.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.


ABCMR Record of Proceedings (cont)	 AR20170007642


3


1