RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2005
      DOCKET NUMBER:  AR20040007718


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an Honorable Discharge.

2.  The applicant states that in 1981 he requested to be placed in the
Control Group because of his employment.  He further indicates that he
spoke with the Captain of his Reserve unit and was placed in the Control
Group.  He understood that he would be called up if a war broke out, but he
would receive an Honorable Discharge, not a General Discharge when his
commitment with the U.S. Army Reserve (USAR) was over.  He went to work
with a local law enforcement department in 1984 and continues to be
employed with them.  Additionally, he indicates that he has not received
any kind of discharge.  During his time with the USAR, he never did
anything to dishonor the unit or the Army.

3.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 August 1985.  The application submitted in this case
is dated
24 September 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 4 May 1979, the applicant enlisted in the USAR for a period of 6
years.  He entered on active duty for training on 31 May 1979 and was
released on
9 December 1979.  Evidence of record indicates he was awarded military
occupational specialty (MOS) 36K10, Tactical Wire Operations Specialist.
He was then assigned to the 814th Military Police Company located in
Chicago, Illinois.  In conjunction with his enlistment, the applicant
signed a DA Form 3540 (Certificate and Acknowledgement of Service
Requirements for Individuals Enlisting or Reenlisting in the United States
Army Reserve).  This form stated, in part, that he would be required to
attend all scheduled training assemblies unless excused by proper
authority.  If he accrued 5 or more unexcused absences during any
continuous 365 day period, he may be considered an unsatisfactory
participant.  Additionally, he would be responsible for complying with all
official orders and replying to correspondence he may receive.  Further, if
he fails to participate satisfactorily for any reasons which may be placed
into effect hereafter by proper authority, he may be declared an
unsatisfactory participant and be separated from the service with an
appropriate discharge, which may include less than an honorable discharge.

4.  On 25 January 1980, the applicant was notified by Registered Mail that
he had accrued 2 unexcused absences.  He signed the return receipt for this
notice.

5.  On 15 February 1980, the applicant was notified by Registered Mail that
he had accrued 2 [sic] unexcused absences.  He signed the return receipt
for this notice.

6.  On 18 April 1980, the applicant was notified by Registered Mail that he
had accrued 6 unexcused absences.  He signed the return receipt for this
notice.

7.  On 10 June  1980, the applicant was notified by Registered Mail that he
had accrued 13 unexcused absences.  He signed the return receipt for this
notice.

8.  On 21 August 1980, the applicant was notified by Registered Mail that
he was being considered for elimination from the USAR under the provisions
of Section VII, Chapter 7, Army Regulation (AR) 135-178 due to misconduct.
He was advised he could consult with counsel, he could appear before a
Board of Officers or waive such a Board, he could be represented by counsel
of his choice at any hearing, and he could submit statements in his behalf.
 The applicant signed the return receipt, but did not make an election.

9.  On 24 October 1980, the applicant was again notified by Registered Mail
that he was being considered for elimination from the USAR under the
provisions of Section VII, Chapter 7, AR 135-178 due to misconduct.  He was
advised he could consult with counsel; he could appear before a Board of
Officers or waive such a Board; he could be represented by counsel of his
choice at any hearing; and he could submit statements in his behalf.  The
notification also indicated the Board of Officers would be held on 8
November 1980.  The applicant signed the return receipt, but did not make
any elections.

10.  On 8 November 1980, a Board of Officers was convened.  The applicant
did not appear.  The Board found the applicant undesirable for further
retention due to misconduct-unsatisfactory participation.  The Board
recommended his separation by transfer to the Individual Ready Reserve
(IRR) with a characterization of service as "Under Other Than Honorable
Conditions."
11.  On 21 April 1981, the Commander, Fifth U.S. Army, Fort Sam Houston,
Texas approved the board's recommendations.

12.  On 28 April 1981, the applicant was reduced in grade from PFC (E-3) to
PVT (E-2) and transferred to the U.S. Army Reserve Control Group (Annual
Training) with a characterization of service as "Under Other Than Honorable
Conditions".

13.  On 24 August 1985, the applicant was discharged from the U.S. Army
Reserve with an Under Other Than Honorable Conditions Discharge by Orders
Number D-08-908235 published by U.S. Army Reserve Personnel Center,
St. Louis, Missouri.

14.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within that board's 15-year
statute of limitations.

15.  AR 135-91 (Service Obligations, Methods of Fulfillment, participation
Requirements, and Enforcement Procedures) dated 25 July 1977, in effect at
the time, states that a member is an unsatisfactory participant when nine
or more unexcused absences from scheduled drills occur during a 1 year
period.  Additionally, policy to be applied to members who are declared
unsatisfactory participants is that they will be considered for separation
under other than honorable conditions as prescribed in section VII, chapter
7, AR 135-178 [Emphasis Added].

16.  Army Regulation 135-178 (Separation of Enlisted Personnel), dated 15
July 1977, in effect at the time, provides for the separation of enlisted
personnel of the Army Reserve and Army National Guard.  Chapter 7 governed
separation for acts or patterns of misconduct, including unsatisfactory
participation.  The regulation provided that the separation authority could
disapprove the commander’s recommendation for discharge for misconduct and
direct disposition by other means, disapprove the recommendation for
separation for misconduct and direct separation for unsatisfactory
performance, or convene a board of officers to determine whether the
service member should separated for misconduct.  When discharged under this
provision, the characterization of service was normally under other than
honorable conditions.






DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are without merit.  There is no evidence
that he requested to be placed in the control group in 1981.  In fact, he
had already been placed in the control group as a result of the board of
officers recommendation being approved by the Commander, Fifth U.S. Army
with a characterization of under other than honorable conditions.

2.  The applicant's contention that he had no knowledge of any discharge
action is not supported by the evidence of record.  He signed the return
receipt for the notification of his proposed separation on two separate
occasions.  He chose not to exercise his rights by not responding to the
notification.  Therefore, the board of officers was held without his
presence.  He was transferred to the U.S. Army Reserve Control Group
(Annual Training) and ultimately discharged on
24 August 1985.  A copy of the discharge order will be provided to the
applicant.

3.  If the applicant had valid reasons for not attending his drills, such
as hardship, he could have requested separation or transfer for hardship
reasons.  There is no available evidence that he tried to contact his unit
to seek other options available to him.

4.  The applicant was not eligible for either an honorable discharge or
general discharge because policy dictated individuals being separated for
unsatisfactory participation would be considered as "under other than
honorable conditions".  Both the board of officers and the convening
authority complied with this policy.

5.  The applicant's 13 unexcused absences and 2 failures to reply to his
proposed separation action are not in keeping with the Army standards
expected of an individual with his time and grade.  Additionally, he
violated the conditions set forth in the DA Form 3540.  The current
characterization of his discharge as being "under other than honorable
conditions" is considered appropriate.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 August 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
23 August 1988.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kan___  __wdp___  __mjnt__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                        Kathleen A. Newman
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007718                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19850824                                |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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