MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2003088635

         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
Mr. Luis Almodova		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: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to general under honorable conditions.

APPLICANT STATES: In effect, in a three-page continuation of his application for correction of military records, that his grandparents, who were his guardians and who had raised him all his life became terminally ill during his enlistment in the Maryland Army National Guard (MDARNG). They required his presence for their total care. His grandmother could not attend to the applicant's grandfather's needs and she was also showing signs of weakness and stress dealing with her own illness. The applicant's grandfather was physically unable to drive and spent much time in the Martinsburg Veterans Hospital. He was his grandparents' sole source of transportation to and from the hospital.

While the applicant was proud to be a member of the Maryland Army National Guard, it seemed that the burdens placed on him, physically, psychologically, and financially overwhelmed him. He spoke to his superiors at his National Guard unit who seemed to be sympathetic to his plight. It was his assumption that they were going to assist him. During all the years, he received no word on his status but in March 2003, he discovered that he had been branded by a less than honorable discharge. Had he known of this earlier, he would have taken great pains to at least bring to light some of the facts in the case. They would have explained why a young man would complete the rigors of basic training and advanced individual training only to risk his future by failing to attend a monthly drill.

As he approaches his mid-life stage, he understands and very much regrets his actions in this matter. The responsibilities to his family and the overwhelming grief seemed to consume him. He adds that he does not offer this as an excuse or justification for his actions but hopes that the Board will agree there is nothing positive to be gained in forcing the continued retribution of the foolish act committed by a young man so far in the past.

The stigma of the discharge is something he takes very seriously. A measure of mercy and compassion under these circumstances is all that he asks. He states that he has been a solid citizen with no negative involvement with the law and has held the same job for the past 18 years.

In support of his application, the applicant submitted a copy of his NGB (National Guard Bureau) Form 22, National Guard Bureau Report of Separation and Record of Service, with an effective date of 8 June 1982; and a copy of his

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DD Form 214, Certificate of Release or Discharge from Active Duty, with an effective date of 27 June 1980.

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

He enlisted in the Army National Guard (ARNG) on 14 November 1979, for 6 years, with an option of: "Enlistment Bonus Program." His enlistment contract stated that he enlisted in the ARNG of the State of Maryland and as a Reserve of the Army for 6 years unless sooner discharged by proper authority. The applicant was over 19 years of age when he enlisted.

The applicant signed a NGB Form 21, Annex A, DD Form 4, Enlistment or Reenlistment Agreement – Army National Guard, on 14 November 1979, acknowledging that he understood he was responsible for keeping his commander advised of his current mailing address, the address at which he would receive official correspondence and his home and business telephone numbers.

The applicant also signed a Statement of Understanding of Reserve Obligations and Responsibilities, National Guard Participation Requirements, Certificate, attesting that he had been counseled relative to his reserve obligation and responsibilities, and fully understood the following:

"a. That if I am not excused from scheduled training periods by proper authority, that I am considered absent without leave and charged with an unexcused absence.

b. That if I am charged with nine (9) unexcused absences, I am subject to being boarded for an OTHER THAN HONORABLE DISCHARGE (Dishonorable) from the Maryland Army National Guard and assigned to Annual Training Control Group of the United States Army Reserve to complete my obligated service.

c. That I am responsible for informing my unit in advance of any change in my mailing address.

d. That I am to immediately and personally contact my unit commander or his designated representative should any condition arise that will keep me from attending a scheduled training period.

e. That if there is a change in my personal status, which effects my ability to participate in a satisfactory manner, I must be excused or

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properly relieved of my duties before I can miss a scheduled assembly.

f. That I will not receive credit for attendance at a scheduled training assembly unless I am in the proper uniform, present a neat and soldierly appearance and perform my assigned duties in a satisfactory manner as determined by my unit commander.

g. That I must reply promptly to military correspondence directed to me."

The applicant was ordered to initial active duty for training on 8 February 1980. He completed basic training and advanced individual training and was awarded military occupational specialty 81B (Technical Drafting Specialist). He was released from active duty for training on 27 June 1980, and reverted to the control of the Maryland Army National Guard.

The applicant was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) on the first and second periods on 12 and 13 December 1981. A Letter of Instruction – Unexcused Absence, was sent to the applicant on 14 December 1981 to notify him that these absences were classified as unexcused absences. The certified letter was returned to the unit as unclaimed. On this date, he had accrued 12 unexcused absences within a one-year period with the one-year period beginning on the date he incurred his first unexcused absence.

There is no evidence that the applicant ever applied for a hardship discharge at any time or that he applied to be excused from scheduled training assemblies for the express purpose of caring for his grandparents or getting them medical care.

The applicant was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) on the first and second periods on 9 and 10 January 1982. A Letter of Instruction – Unexcused Absence, was sent to the applicant on 22 January 1982 to notify him that these absences were classified as unexcused absences. The certified letter was returned to the unit as unclaimed. The number of unexcused absences that the applicant had accrued within a one-year period was blank.

The applicant was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) on the first and second periods on 13 and 14 February 1982. A Letter of Instruction – Unexcused Absence, was sent to the

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applicant on 18 February 1982 to notify him that these absences were classified as unexcused absences. The certified letter was returned to the unit as unclaimed. On this date, he had accrued 48 unexcused absences within a one-year period. The letter contained notification that the next scheduled training assembly was scheduled for 20 and 21 March 1982.

On 6 April 1982, the applicant's unit commander prepared a letter and sent it to the applicant by certified mail notifying him that he [the commander] was initiating action to separate him from the Army National Guard for misconduct under the provisions of Chapter 7, AR 135-178. The applicant was notified that if he were separated, his service may be characterized as Under Honorable Conditions, a General Discharge, or Under Other Than Honorable Conditions, or a Dishonorable Discharge. The reason for the proposed separation was "continuous and willful absence from military duties." The applicant was informed that acknowledgement of the letter was required by 21 May 1942. The certified letter was returned to the unit as unclaimed and therefore, the letter notifying him of the intended action was not acknowledged.

On 4 June 1982, an Administrative Discharge Board met to consider the evidence before it and found that the applicant was undesirable for further retention in the military service because of misconduct – unsatisfactory participation. The board recommended that the applicant be discharged with a characterization of service of Under Other Than Honorable Conditions.

On 8 June 1982, the Military Department of the State of Maryland, Fifth Regiment Armory, published orders 111-11, and discharged the applicant from the Army National Guard and assigned him to the USAR Control Group (Annual Training) with an effective date of 8 June 1982.

The applicant's Report of Separation and Record of Service, NGB Form 22, shows he was discharged from the MDARNG (but not as a Reserve of the Army) on 8 June 1982. Block 8d (Character of Service), of the applicant's NGB Form 22, shows that his service was characterized as, "Under Other Than Honorable Conditions."

On 16 January 1986, the US Army Reserve Personnel Center discharged the applicant Under Other Than Honorable Conditions, from the US Army Reserve (Annual Training) in accordance with DARP-PAP-SS Orders #D-01-900142. The discharge certificate and orders were mailed to the applicant's last known address on 22 January 1986.

Army Regulation 135-178 prescribes policies, criteria and procedures, which apply to separation of enlisted members of the Army National Guard of the

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United States and the United States Army Reserve. Chapter 7 of this regulation prescribes the procedures for separation of enlisted members of the USAR for misconduct by reason of unsatisfactory participation of statutorily obligated members.

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 4-11 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.

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. At the time the applicant enlisted in the MDARNG on 2 February 1980, he knew he was enlisting in the Maryland Army National Guard and as a Reserve of the Army. He acknowledged that he knew what the participation requirements were and what the enforcement provisions were. There is no evidence that he was any less mature than other young men of the same age and therefore, was responsible for complying with his agreements.

3. The applicant knew that if he was charged with 9 unexcused absences, he was subject to being boarded and subject to receiving an Under Other Than Honorable Discharge from the Maryland Army National Guard.

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4. The Board is sympathetic with the problems he alleges to have encountered with his grandparents' illnesses and their lack of transportation to get medical treatment when he enlisted; but the evidence of record shows he did not abide by his agreement to notify his unit of address and telephone number changes.

5. The Board noted that the applicant failed to notify the unit commander or his designated representative about personal problems that might preclude him from attending UTAs and MUTAs.

6. The applicant’s records contained three Letters of Instruction-Unexcused Absence, which shows that the applicant was absent on several occasions from scheduled unit training assemblies and that the unit made attempts at notifying him of actions being contemplated for his separation. 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.

7. The type of separation directed and the reasons for that separation were appropriate considering all of the available facts of the case.

8. 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	AR2003088635
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19860116
DISCHARGE AUTHORITY	AR 135-178, Chapter 7
DISCHARGE REASON	A84.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0133
3.	144.8400
4.
5.
6.