PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 April 2003
         DOCKET NUMBER: AR2002075963


         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
Mr. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Mr. Thomas E. O'Shaughnessy		Member

         The applicant and counsel, if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records:

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests his 1985 discharge from the Army Reserve (USAR) be upgraded.

3. The applicant states, in effect, that his 1985 discharge was improper in that his enlistment in the Navy met or negated his Army Reserve service obligation. He states that his financial situation could best be resolved by entering active duty. He states that he approached the different recruiters and the Navy offered him the best options. He submits an extensive packet of information in support of his request including copies of his Navy enlistment contract and associated Navy enlistment records; his DD Form 214 for his period of Navy service; a post service letter of character; and certificates of completion of training.

4. The applicant’s counsel concurs that the applicant’s 1985 USAR discharge was improper and that it should be either upgraded or voided.

5. The applicant’s military records show that he enlisted in the USAR for 6 years on 4 May 1979. He entered active duty for training (ADT) on 13 August 1979. He successfully completing basic combat training, advanced individual training, and was released from ADT on 9 November 1979, with a Reserve obligation through 3 May 1985.

6. The applicant served as a drilling Reservist with the 946^th Transportation Company, Cape Henlopen USAR Center, Lewis, Delaware. There is no indication of any disciplinary action or that the applicant was not satisfactorily performing his duties until 10 April 1981.

7. On 30 January 1981, the applicant enlisted in the Navy Reserve (USNR) for 6 years. He successfully completed Navy recruit training, Operations Specialist “A” school training, and was assigned to the USS Manley.

8. The enlistment paper work shows that the Navy was notified that the applicant was in the active Army Reserve at the time he enlisted.

9. On 25 August 1982, the applicant was discharged from the Navy with an Under Other Than Conditions Discharge (UOTHC) for misconduct – frequent involvement of a discreditable nature with civil or military authorities. The specifics of his misconduct are not of record.

10. The applicant’s 25 August 1982 Certificate of Release or Discharge from Active Duty (DD Form 214) shows that the applicant had 1 year, 2 months and 21 days of active Navy service; 2 months and 27 days of active Army service; and 1 year, 7 months, and 6 days of inactive USAR service. It also shows that he had 106 days of lost time during his service in the Navy.

11. The record contains seven returned letters from the applicant’s USAR unit notifying him that he was being charged with either unexcused absences or being absent without leave (AWOL) from annual active duty training (AT). The first letter is postmarked between 29 April 1981 and 9 March 1982. All seven letters were returned marked as undeliverable or unclaimed.

12. The first of these returned letters is for an unexcused absence of five drill periods, 10-12 April 1981. The second, dated 4 May 1981, for four unexcused absences, was returned with a notice from the post office that states: “Moved, left no forwarding address Individual is in the Navy”. The last letter, dated 9 March 1982, advises the applicant that he was charged with a total of 26 unexcused absences and 14 days AWOL from AT.

13. There is no evidence that the applicant was ever removed from his unit and transferred to the Individual Ready Reserve (IRR).

14. An 18 October 1982 memorandum, from the applicant’s USAR unit, states that per a telephone conversation of 30 September 1982, a worldwide check with the Navy on the status of the applicant was initiated. The memorandum states, “There were no record of Pvt. MXXXXX enlisting in the Navy.”

15. The next entry in the applicant’s Official Military Personnel File (OMPF) is a copy of the U.S. Army Reserve Personnel Center (USARPC), St. Louis, Missouri, Orders D-05-901880, dated 30 May 1985. These orders notify the applicant that he is being discharged from the USAR (Ready) with an Under Other Than Honorable Conditions Discharge (UOTHC). The authorization is listed only as Army Regulation 135-178. The specific reason and authority is not noted in the orders nor is there any record of the administrative actions that lead to this discharge.

16. Army Regulation 135-91, section 4-11, states that a member is an unsatisfactory participant when they have accumulated nine or more unexcused absences within a 1-year period. Section 4-12, states that after the ninth unexcused absence, in a 12 month period, the unit commander should initiate action to transfer the member to the IRR.

17. Army Regulation 135-178 sets forth the policy and guidelines for separation of enlisted personnel of the Army National Guard and Army Reserve. Chapter 6 sets forth the provisions for discharging a service member for unsatisfactory performance. Included in this regulation are provisions for discharge due to excessive unexcused absenteeism from drills or periods of AWOL during assigned AT periods.

18. Army Regulation 135-178, section 3-3, states that an enlisted member will be discharged (from the Reserve) upon enlistment in any active component of the Armed Forces.

CONCLUSIONS:

1. Based upon the evidence available to the USARPC, at the time of his discharge, the applicant’s discharge was technically correct. However, the Board finds that not all of the evidence used to render the decision to discharge him, for unsatisfactory performance, or to determine his character of service was correct. In addition to not having correct information, his USAR unit failed to act timely on several important matters.

2. The major problem in this case derives from the fact that the proper notification by the Navy to the USAR appears not to have occurred or was not properly forwarded to the applicant’s USAR unit.

3. Notwithstanding this, the Board finds that the applicant’s USAR unit failed to act in a timely manner in attempting to determine his status in the Navy. The unit was notified that the applicant had enlisted in the Navy, by the US Post Office, as documented by the note attached to the 4 May 1981 returned letter. The command did not attempt to verify this fact until 30 September 1982, 16 months after the fact, and a month after the applicant had been discharged from the Navy.

4. Further, it is not clear from the October 1982 memorandum whether the unit’s request was for evidence that the applicant had enlisted in the Navy or if it was for evidence that the applicant was on active duty in the Navy. If the wording of the request was to determine if the applicant was on active duty, the response was correct, however, if it was to determine if he had enlisted, then it was clearly erroneous.

5. It appears that the applicant’s unit failed to act in a timely manner to verify his status and to take the proper actions declaring the applicant an unsatisfactory participant. The record is void of the actual transfer of the applicant to the IRR however it appears that he was erroneously carried in the unit through at least March 1982. Action to either transfer the applicant to the IRR or to discharge him should have occurred after he had 9 unexcused absences on or about May 1981. However, the record does document that he was discharged from the IRR (Control Group Annual Training) on 30 May 1985 under other than honorable conditions.

6. The Board finds that the applicant has submitted sufficient evidence to show that he legally enlisted in the Navy on 30 January 1981. In accordance with regulation, the applicant should have been discharged from the USAR at the time he entered active duty in the Navy. The fact that proper communication between the Navy and the USAR apparently did not occur does not negate this fact.

7. The Board finds no evidence that the applicant was not performing in a satisfactory manner at the time he enlisted in the Navy. Therefore, the Board concludes that it would create an injustice to discharge the applicant with other than an honorable discharge.

8. Therefore, the Board concludes that the applicant should have been honorably discharged from the USAR effective 29 January 1981, the day prior to his enlistment in the Navy.

9. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below will correct an error and injustice.

RECOMMENDATION:

That all of the Department of the Army records for the individual concerned related to this case be corrected;
        
         a. by voiding the 30 May 1985 orders discharging the applicant from the USAR;

         b. by issuing new orders discharging him, under Army Regulation 135-178, section 3-3, with an honorable characterization of service, effective 29 January 1981; and,

         c. by purging his records of all references to the unexcused absences, periods of AT AWOL, and the under other than honorable conditions discharge.


BOARD VOTE:

__AAO___ __TBR__ _TEO __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002075963
SUFFIX
RECON
DATE BOARDED	20030401
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	110.01
2.	144.84
3.	144.9905
4.
5.
6.