MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001058362

         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.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Deborah S. Jacobs		Chairperson
Mr. Donald P. Hupman		Member
Mr. Elzey J. Arledge		Member

         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)

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APPLICANT REQUESTS: In effect, that he be reinstated in the Kansas Army National Guard (KSARNG) in the rank of sergeant (SGT), pay grade E-5.

APPLICANT STATES: That his rank should be reinstated in order to reenlist with the proper rank. He also states that he would not throw away a good record after serving as an administrative support technician and honor graduate from the Kansas Military Academy. He further states that he does not understand why he was reduced from SGT/E-5 to PV2/E-2, that he had a full time position offered to him by his battalion commander, which was denied by his company commander, and that he lost his civilian job as fingerprint expert. In support of his application, he submits several documents from his personnel file.

EVIDENCE OF RECORD: The applicant's military records show he enlisted in the KSARNG on 3 February 1975, as a material supply specialist. He was ordered to active duty for training (ADT) on 21 February 1975, and was released from ADT on 5 July 1975. He was returned to control of the KSARNG to complete his remaining service obligation.

He was promoted to SP5/E5 on 14 May 1977. He continued to serve in the KSARNG until he was honorably discharged on 2 February 1981.

After a break in service, he reenlisted in the US Army Reserve (USAR) on 19 January 1983, for a period of 1 year. He continued to serve until he was honorably discharged on 17 December 1983 in order to reenlist. He reenlisted on 18 December 1983, for a period of 6 years in the pay grade of E-5.

The applicant’s records contain a copy of Headquarters, 102nd USAR Command Orders 49-26, dated 16 April 1985, which shows that he was honorably discharged from the USAR on 11 February 1985, in order to reenlist in the KSARNG. He reenlisted in the KSARNG on 12 February 1985, in the pay grade of E-5.

On 24 April 1987, the applicant submitted a request for transfer to the Individual
Ready Reserve (IRR) due to drastic changes that took place in his civilian job. He also stated in his request that he needed to concentrate more on his job that provided support for his family and that serving in the KSARNG would cause a conflict with his civilian position.

The applicant’s records contain three letters of Notification of Intent to Reduce and a letter of Request for Reduction due to his misconduct and absent without leave (AWOL) periods from 1 to 4 May 1987, and from 16 to 17 May 1987.




On 17 November 1987, the applicant’s commander submitted a request to reduce the applicant from SGT to SP4 for misconduct. He based his recommendation on the applicant’s AWOL from unit training during the period
24 to 25 October 1987.

On 7 December 1987, orders were published reducing the applicant from
SGT/E-5 to SPC/E-4 for misconduct with an effective date of 24 October 1987.

On 14 December 1987, orders were published reducing the applicant from SP4/E-4 to PFC/E-3 with an effective date of 25 October 1987, and from PFC/E3 to PV2/E-2 with an effective date of 14 November 1987, for misconduct (AWOL).

On 28 December 1987, the applicant’s commander submitted a request to separate the applicant from the KSARNG. He stated that AWOL letters had been sent to the applicant, that he had been reduced from SGT to PV2 because of his continued AWOLs, and that he should be discharged.

The applicant’s records contain four Letters of Instruction-Unexcused Absence which shows that the applicant was AWOL on several occasions from scheduled unit training assemblies. The letters also stated that the applicant was required to attend all scheduled unit training assemblies and annual training periods under the provisions of Army Regulation 135-91.

On 14 March 1988, the commander submitted his recommendation to involuntarily separate the applicant for unsatisfactory performance under the provisions of Army Regulation 135-178. He cited as the basis for his recommendation the applicant’s AWOLs for more than nine periods during the last twelve-month period.

On 1 May 1988, the applicant was discharged under honorable conditions from the KSARNG and as a Reserve of the Army under the provisions of National Guard Regulation 600-200, paragraph 8-27g, for unsatisfactory participation.

Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) prescribes policy
and procedures governing the various types of service obligations and participation requirements for members of the USAR and Army National Guard (ARNG). Chapter 4 provides guidance governing absences from Ready Reserve Training for enlisted and officer personnel of the ARNG and USAR. Paragraph
4-2 states, in pertinent part, that the unit commander or acting commander is authorized to excuse absences and authorize equivalent training (ET). This authority will not be further delegated. A State Adjutant General (for ARNG) and general officer commanders (for USAR) are authorized to grant exceptions to unexcused absences and it may be delegated to commanders in grade O-5 or above.
Paragraph 4-7 of the same regulation pertains to employment conflict. It states that employers sometimes schedule several weeks of career training which prevents the soldier from attending drills. When this occurs, the commander may excuse the absence and authorize ET and with his approval, a soldier may be attached to another ARNG or USAR unit for ET. Employment conflicts, overtime, schooling, and loss of income are not normally considered valid reasons for absence from training. If any of these conditions create a continuing hardship, the unit commander will refer the case through channels to the approval authority. The general officer commander (USAR) or the State Adjutant General
for (ARNG) will decide whether to retain or remove the soldier from the unit. While awaiting this decision, the soldier is required to participate.

Paragraph 4-11 of the same regulation pertains to unexcused absence from unit training assemblies. It states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a
1-year period. Unless an absence is authorized, a soldier failing to attend a scheduled single or multiple unit training assembly (MUTA) will be charged with an unexcused absence.

Army Regulation 135-178 provides for the separation of enlisted personnel of the USAR and the ARNG. Chapter 6, of the regulation governs the separation for unsatisfactory performance. The regulation provides that a solder may be separated under this chapter when it is determined that he or she is unqualified for further military service by reason of unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by his or her military records.

National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted soldiers. Chapter 8, paragraph 27(g) provides for the separation of personnel due to unsatisfactory participation.

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 evidence of record shows that the applicant received several letters of Notification of Intent to Reduce, a letter of Request for Reduction, and a request for reduction from his commander due to his misconduct which was based on his continued AWOLs. The evidence also shows that orders were published reducing the applicant from SGT/E-5 to PV2.



2. The applicant’s records contained four Letters of Instruction-Unexcused Absence, which shows that the applicant was AWOL on several occasions from scheduled unit training assemblies. The Board notes that he was required to attend all scheduled unit training assemblies and annual training periods under the provisions of Army Regulation 135-91, which he did not follow.

3. The applicant’s involuntary separation under the provisions of National Guard Regulation 600-200, paragraph 8-27(g), for unsatisfactory performance was administratively correct and in conformance with applicable regulations.

4. The Board notes that the applicant submitted a request to transfer to the IRR due to drastic changes that took place in his civilian job and that additional time was needed to concentrate on his job that provided support for his family. However, in accordance with Army Regulation 135-91, employment conflicts and loss of income are not normally considered valid reasons for absence from training. The Board also notes that the applicant failed to show that his conditions created a hardship for his commander to refer his case through channels to the approving authority. Therefore, there is no basis for granting the applicant’s request for reinstatement in the KSARNG in the rank of SGT/E-5.

5. 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 this requirement.

6. 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

__dj____ ___dh___ ___ea___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058362
SUFFIX
RECON
DATE BOARDED	20011106
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19880501
DISCHARGE AUTHORITY	AR //NGR 600-200, P-8-27G
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 322
2.
3.
4.
5.
6.