Author: WoodsHN

ABCMR Memorandum of                                                                   AC97-10874
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:              6 May 1998                
	DOCKET NUMBER:     AC97-10874

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:

| Mr. | Samuel A. Crumpler | | Chairperson
| Mr. | Karen J. Newsome | | Member
| Mr. | Raymond V. O’Connor Jr. | | Member

	Also present, without vote, were:

| Mr. | Loren G. Harrell | | Director
| Mr. | Joseph A. Adriance | | Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that his discharge was based on the misjudgment of his commanding officer and that it should be upgraded in the interest of justice.  The applicant has also enclosed in support of his application a letter of reference, a vocation training certificate, and a resume, all attesting to his postservice good conduct.

 EVIDENCE OF RECORD:  The applicant's military records show:  

On 18 January 1978 the applicant enlisted in the United States Army Reserve (USAR) for a period of 6 years.  He completed his initial active duty for training at Fort Leonard Wood, Missouri, was awarded military occupational specialty (MOS) 64C (Heavy Vehicle Driver) and joined his troop program unit on 
13 October 1978.

The applicant’s record indicates the highest grade he held was private/E-2 and contains no documented acts of valor, achievement, or service warranting special recognition.  However, the record does contain a recorded history of non- participation in scheduled unit assemblies on the part of the applicant.  He failed to attend scheduled unit training assemblies for the following periods: 7-8 March 1981; 9 May 1981; 6-7 June 1981.  This resulted in an accumulation of 10 unexcused absences.

On 27 July 1981 the applicant’s unit commander notified the applicant by letter, subject: notice of unsatisfactory performance under AR 135-91 and separation under AR 135-178, that he had been charged with 10 unexcused absences in a one year period.  The commander also advised the applicant that he was being declared an unsatisfactory participant, and that he would be processed for separation for misconduct,  under the provisions of Section VII, Chapter 7, 
AR 135-178.  The applicant’s unit commander suspended the action for 45 days in order to allow the applicant to exercise his rights; however, the applicant failed to respond.

On 22 December 1981 in a 2nd endorsement, from Headquarters, Fifth United States Army, Fort Sam Houston, Texas, the Commander of the 102nd USAR, 
Command, St. Louis, Missouri, was directed to have the unit commander’s action completed by boarding the applicant’s case in absentia and recording the results.  The record contains an order, dated 6 May 1982 from the 102nd USAR Command relieving the applicant from his troop program unit assignment for unsatisfactory participation, and reassigning him to the USAR control group, St. Louis , Missouri.
On 8 February 1984 the applicant was discharged with a UOTHC, pursuant to orders number D-02-900355, Department of the Army, USAR Personnel Center, 9700 Page Boulevard, St. Louis, Missouri  63132; and issued a DD Form 794A (Discharge/UOTHC).

On 24 October 1997 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper in all respects.

Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the Army National Guard of the United States and the United States Army Reserve.  Chapter 7 establishes policy and procedures for separating members for misconduct, including unsatisfactory participation.  The normal characterization of service for a soldier separated under the provisions of Chapter 7 is normally under other than honorable conditions.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s record is void of some facts and circumstances concerning events that led to a discharge from the Army.  However, the Board did note that the applicant’s record contained a properly constituted separation packet prepared by the commander which afforded the applicant every opportunity to take part in the process by exercising his rights; however, the applicant failed to respond to this action.

2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Even though a significant period of time elapsed between the initiation of separation action and the administrative separation board hearing, there is no evidence to suggest this prejudiced the final outcome of the case.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director