MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2002082577

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		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: That the orders transferring him to the Individual Ready Reserve (IRR) as an unsatisfactory participant be revoked.

APPLICANT STATES: On his DA Form 1559-R (Inspector General Action Request), dated 25 August 2001, that he did not accrue 9 unexcused absences prior to being transferred to the IRR as an unsatisfactory participant. He accrued 4 unexcused absences during January 1998. He received excused absences for February 1998. He was given a written excusal for March and April 1998 based on a meeting conducted on 6 March 1998 (his civilian military technician work environment had become very hostile). At that 6 March 1998 meeting, he was given the impression that a similar "work around" with his military duty would be given until further notice. He was not given all the documents pertaining to his unsatisfactory participation until 9 July 1998 and he never received a final decision from his company commander providing the facts for his unsatisfactory participation.

The applicant stated on his DA Form 1559-R that he never received any documents by certified mail about his unsatisfactory participation. The only document he received from his company commander was a denial to his request for an extension for his appeal. He received letters and orders from the Assistant Deputy Chief of Staff for Operations (ADCSOPS), Lieutenant Colonel (LTC) T___, but LTC T___ was not the company commander. He was never given an opportunity to provide evidence.

The applicant stated on his DA Form 1559-R that the regulation states a soldier's overall performance and record of attendance at previously scheduled training are the primary factors in granting an exception to unexcused absences. He stated that in the past 9 years his duty performance as a soldier and a military technician was nothing less than exceptional.

The applicant provides the DA Form 1559-R, with the documents listed as Tabs A through D (Tab D a 2-page extract of Army Regulation 135-91) on the DA Form 1559-R, as supporting evidence.

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

After having over 11 years of prior active duty, he enlisted in the U. S. Army Reserve on 7 May 1987. On or about 24 May 1989, he was assigned to Headquarters and Headquarters Company (HHC), 7th Army Reserve Command (ARCOM), Heidelberg, Germany. He was promoted to Sergeant First Class, E-7 on 31 October 1993.

On 12 February 1997, the applicant was ordered to active duty in support of Operation Joint Guard and sent on temporary duty to Fort Benning, Georgia.

The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period February through August 1997 was a Relief for Cause report. Part IVa contained 4 "no" checks out of 7 Values areas and 3 negative comments. Parts IVb (Competence), IVd (Leadership), and IVf (Responsibility and Accountability) rated the applicant as needing much improvement. The majority of the comments were negative and included the comments, "On several occasions abandoned his subordinates to handle personal affairs" and "Displayed attributes that lost him the respect and confidence of those whom he supervised."

A DA Form 4856 (General Counseling) dated 5 September 1997 shows the applicant was counseled (telephonically) on 21 August 1997 to clear Fort Benning properly, to settle all financial obligations there, to depart not later than 24 August 1997 on a flight due to arrive in Germany on 25 August 1997 at 8:30 a. m., and to receive permission only from the counselor (LTC L___) to deviate from those instructions. The DA Form 4856 further shows that the applicant was counseled (telephonically) on 22 August 1997 that his request to delay his flight was denied because he could not provide sufficient justification. The DA Form 4856 shows that the applicant did not arrive in Germany on the directed flight and did not arrive until later the afternoon of 25 August 1997.

Another DA Form 4856, also dated 5 September 1997, shows that the counselor (LTC L___) had numerous personal conversations between himself and the applicant during the counselor's visits to Fort Benning and also telephonically regarding the applicant's performance. Those conversations began on or about 21 February 1997. The DA Form 4856 shows that the applicant was counseled for reporting late for work on 3 and 4 September 1997. He was informed that he was repeating the same pattern of poor performance and undisciplined behavior he had displayed at Fort Benning.

Another DA Form 4856, also dated 5 September 1997, shows the applicant was counseled regarding a delinquent account with the Army and Air Force Exchange Service.

An undated DA Form 4856 shows the applicant was counseled on 20 May 1997 concerning duty performance deficiencies while at Fort Benning and again on 20 June 1997 for the same reason. It shows he was counseled on 13 August 1997 concerning "the American Express Government Travel past due and suspended account." It shows he was counseled on 20 August 1997 concerning a letter of admonishment regarding failure to obey orders of a superior commissioned officer, absence without leave, and failure to repair.

On 23 September 1997, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty and failing to obey a lawful order. His punishment was extra duty for 30 days, to receive a written reprimand, and to forfeit $1,000.00 for 2 months ($800.00 per month suspended for 2 months). He appealed the punishment. He stated that it was understood before he left for Fort Benning that he would be allowed to visit his family in Mobile, Alabama on free opportunities or on leave to assist his family with problems stemming from the murder of his twin sister. His appeal was denied.

A DA Form 4856, dated 23 September 1997, shows the applicant was counseled regarding being late for work on 23 September 1997 and for failing to pay fees owed to his landlord as a result of a lawsuit filed against him by the landlord for nonpayment of rent.

By memorandum dated 26 January 1998, the Commander, HHC, 7th ARCOM informed the applicant that he was absent from scheduled unit training assemblies (UTA) or multiple unit training assemblies (MUTA) on 10 and 11 January 1998 (2 each day). He was informed that unless the absences were excused, he would have accrued 4 unexcused absences within a 1-year period. He was informed that his absence could not be excused unless his request, and affidavit or certificate, were received within 15 days of the date he received this letter. No certified mail receipt is available.

An email from LTC G___ (apparently the military personnel officer for the 7th ARCOM), dated 8 September 1999 but referring to a March 1998 meeting, indicates LTC G___ held a meeting between himself, Major C___, and the applicant to resolve some employment issues (apparently related to the applicant's position as a military technician). LTC G___ indicated that he realized the applicant's [civilian] work place was a hostile environment and recommended to the 7th ARCOM commander that the applicant be detailed out of the Deputy Chief of Staff for Force Development (DCSFOR) office. The commander agreed. Then LTC G___ realized the applicant would have the same supervision when he attended unit drills in his military capacity. LTC G___ recommended to the 7th ARCOM commander that the applicant be excused from the March drill until something could be worked out. LTC G___ stated in the email that the commander agreed and informed LTC G___ that the applicant was excused from the March drill. LTC G___ then informed the applicant that he was excused from the March drill. LTC G___ did not know what took place after that conversation.

Effective 9 March 1998, the applicant, in his civilian capacity, was transferred from DCSFOR to DCSOPS.

Apparently, the Commander, HHC, 7th ARCOM sent the applicant a memorandum concerning having been absent from the March 1998 UTA/MUTA; however, the memorandum for that month's absence is not available.

By memorandum dated 20 April 1998, the Commander, HHC, 7th ARCOM informed the applicant that he was absent from scheduled UTAs or MUTAs on 18 and 19 April 1998 (2 each day). He was informed that unless the absences were excused, he would have accrued 12 unexcused absences within a 1-year period. He was informed that his absence could not be excused unless his request, and affidavit or certificate, were received within 15 days of the date he received this letter. No certified mail receipt is available.

Headquarters, 7th ARCOM Orders 110-2, dated 20 April 1998, released the applicant from HHC, 7th ARCOM effective 19 April 1998 as an unsatisfactory participant.

Headquarters, 7th ARCOM Orders 124-7, dated 4 May, revoked Orders 110-2 to allow time for the appeal process.

Headquarters, 7th ARCOM Orders 173-1, dated 22 June 1998, released the applicant from HHC, 7th ARCOM effective 20 May 1998 as an unsatisfactory participant.

By memorandum dated 9 July 1998, LTC T___ informed the applicant of his unsatisfactory participation and reassignment to the IRR. He was informed the letters had been previously mailed to him and he was being given the documents in person to ensure he received them and was aware of their importance. He was informed that the provisions of paragraph 4 of the attached letters (requesting that the absences be excused) would apply upon his receipt of the memorandum. The applicant signed the memorandum.

By memorandum dated 29 July 1998, LTC T___ informed the applicant that he had not received a response from the applicant and he was giving the applicant an additional opportunity to respond to his unexcused absences. He was being given an additional 5-day period to respond to the unexcused absence letters effective upon the receipt of this memorandum. The applicant signed the memorandum on 29 July 1998.

By endorsement dated 3 August 1998, the applicant informed his chain of command that due to issues pertaining to his civilian job, the filing of an equal employment opportunity (EEO) complaint against the 7th ARCOM would make it inappropriate to submit an appeal at that time. He requested that action to place him in the IRR be held in abeyance until his EEO complaint had been processed.

By memorandum dated 11 August 1998, the Commander, HHC, 7th ARCOM informed the applicant that his request for extension of the appeal process time limit was denied.

By endorsement dated 13 August 1998, the applicant informed the Commander, HHC, 7th ARCOM that Army Regulation 135-91 allowed for excused absences when circumstances beyond the soldier's control caused the absence. Being discriminated against was beyond his control. He again requested that his transfer be held in abeyance pending the processing of his EEO complaint.

On 13 October 1999, the applicant filed an Inspector General (IG) complaint with U. S. Army Europe, which referred the complaint to the 7th ARCOM. By memorandum dated 26 October 1999, the 7th ARCOM IG informed the applicant that they had previously conducted an inquiry into his concerns and found that his transfer to the IRR was compliant with regulatory procedures. The IG stated that the 7th ARCOM commander did not recall authorizing him an excused absence for the March 1998 drill and, in addition, the HHC, 7th ARCOM commander never received the paperwork requesting an excusal for the March 1998 drill.

On 25 August 2001, the applicant filed a Department of the Army IG (DAIG) complaint. On 1 July 2002, the DAIG informed the applicant that they conducted a due process review of the inquiry conducted by the 7th ARCOM IG and determined that a fair and thorough inquiry into the matters he presented had been conducted. The DAIG stated that no further action was warranted.

Army Regulation 135-91 defines Army National Guard and U. S. Army Reserve service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements.

Army Regulation 135-91 states that general officer commanders are authorized to grant exceptions to unexcused absences. This authority may be delegated to commanders LTC or higher. It states that enlisted soldiers who are declared unsatisfactory participants may be transferred to the IRR.

Army Regulation 135-91 states that all situations not specifically identified in chapter 4, section II (Excused Absences), section IV (Leave of Absence) or section V (Pregnancy) are considered unexcused absences. Absences may be excused when sickness, injury, or some other circumstances beyond the soldier's control caused the absence.

Army Regulation 135-91 states that a soldier excused for a reason shown in section II may be required to document the reason for the absence. If the unit commander requires this evidence, the soldier will normally be notified within 14 days of the absence. Evidence submitted by the soldier will be in the form of an affidavit when the absence was beyond the soldier's control.

Army Regulation 135-91 states that an enlisted soldier who is obligated by statute or contract will be charged with unsatisfactory participation when, without proper authority, he or she accrues a total of 9 or more unexcused absences from scheduled drills in any 1-year period.

Army Regulation 135-91 states that a request for an exception to unexcused absences will be sent to the approval authority only when fully warranted. A soldier's overall performance and record of attendance at previously scheduled training are the primary factors in granting an exception to unexcused absences. Only those soldiers who have clearly shown exemplary performance of duty and a potential for continued outstanding service will be favorably considered. Exceptions to unexcused absences will not be granted unless there were extenuating circumstances bearing directly on the failure to attend the scheduled training. Recommendations for exceptions to unexcused absences will be sent with full justification through command channels not later than 20 days after the absence.

Army Regulation 135-91 states that a soldier failing to attend a scheduled UTA or MUTA will be charged with an unexcused absence unless excused. When absence involves a MUTA, the charge will be one unexcused absence for each 4-hour period not attended. The 1-year period will begin on the date of the absence and end 1 year later. The unit commander will send a Letter of Instructions – Unexcused Absence to the soldier either in person or by certified mail after the 4th unexcused absence in a 12-month period and after each succeeding unexcused absence up to and including the 9th absence in a 12-month period. One letter will cover all unexcused absences from a MUTA.

Army Regulation 135-91 states that, when the notices are personally delivered, the soldier's signature will be obtained on the file copy as acknowledgment of receipt. When certified mail is used, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered will be filed. Also filed will be the unit commander's statement showing his or her decision as to whether the reason which prevented the soldier from attending the 9th training assembly was valid or an emergency will also be filed. The facts or circumstances on which the decision was based will be included in the statement.

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. 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.

2. There is no evidence of record and the applicant provides none to show he received a written excuse for his March and April 1998 drills. The email he provides which references the 6 March 1998 meeting (and which was prepared 18 months after this meeting) does not mention that he was given a written excuse and only mentions the March 1998 drill. If after this meeting the applicant was given the impression that he was excused from his March and April 1998 drills, there is no evidence to show that he provided those impressions as the basis for a written request for excused absence as required by regulation.

3. There is no evidence to show the applicant gave his commander a reason why his absences should be excused. In fact, the evidence shows the applicant made a conscious decision, based upon his EEO complaint in process, not to provide a reason when offered the opportunity to appeal his transfer for unsatisfactory participation. Therefore, the unit commander could not provide a statement showing the facts, circumstances, or reason upon which he determined the applicant's absences were not to be excused.

4. The Board agrees with the applicant that it appears he never received any
documents by certified mail about his unsatisfactory participation. However, he was personally provided the notices of unsatisfactory participation later. The Board concludes that the fact LTC T___, rather than his company commander, gave the notices to the applicant is immaterial to the process of notification. Contrary to the applicant's allegations, he was given an opportunity to provide evidence. Again, the applicant made a conscious decision not to appeal his transfer for unsatisfactory participation.

5. The Board is cognizant of the fact the available orders show the applicant was transferred from HHC, 7th ARCOM to the IRR effective 20 May 1998 as an unsatisfactory participant, before the applicant was personally presented the notices of unsatisfactory participation. However, the Board presumes that, had he successfully appealed the unexcused absences, those orders would have been revoked as an earlier set of transfer orders had been revoked.

6. The Board notes that Army Regulation 135-91 states a soldier's overall performance and record of attendance at previously scheduled training are the primary factors in granting an exception to unexcused absences. However, the Board disagrees with the applicant's contention that in the previous 9 years his duty performance as a soldier and a military technician was nothing less than exceptional.

7. The evidence of record shows that the applicant's performance of duties for the year prior to his transfer to the IRR were not up to standard. The Board understands the family problems he tried to resolve while at Fort Benning; however, his performance continued to be below standards after his return to Germany.

8. The Board understands the applicant had problems with his job as a military technician to the point he felt he had to file an EEO complaint. However, he does not provide the results of that complaint. Therefore, the Board cannot determine if his complaint had any relevance to the unexcused absences which resulted in his transfer to the IRR for unsatisfactory participation.

9. 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

__mhm___ __dsj___ __jam___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082577
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	135.03
2.
3.
4.
5.
6.