RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20040011507


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael Flynn                 |     |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 correction of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), his DA Form 1059 (Service School
Academic Evaluation Report), and his NGB Form 22 (Report of Separation and
Record of Service) to reflect non-completion instead of failure to complete
the Field Artillery Officer Basic Course (FAOBC) at Fort Sill, Oklahoma.

2.  The applicant states that his records are in error because he resigned
his commission in February 1994 at the FAOBC.  He chose to resign his
commission to assist his father in his ill health and he did not finish the
course.  He states that the U.S. Army Field Artillery School determined
that he had failed the FAOBC academically.  He was declared a non-graduate,
his Federal Recognition was withdrawn, his commission was terminated, and
he was released from the Kentucky Army National Guard.  He did fail an Army
Physical Fitness Test and meteorology date examination during the course.
However, after he chose to leave the course and resign, this seemed like
the easiest way for the school to disenroll him and remove him from the
course.  Since that time, he has joined the Indiana Army National Guard as
an E-4, has completed the 11B (Infantryman) military occupational specialty
(MOS) course, the 75H (Personnel Services Specialist) active duty Basic
Noncommissioned Officer Course, has become an Active Guard Reserve Soldier,
and has been promoted to E-7.  He is currently deployed to Afghanistan.  He
feels that he has the ability to become an excellent warrant or
commissioned officer for the United States Army and he believes that he
would be a benefit to his state and country as an officer.

3.  The applicant provides a copy of his DD Form 214; his DA Form 1059 for
the period covering 23 September 1993 through 22 February 1994; and his NGB
Form 22 for the period ending 3 March 1994.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on 2 February 1994, the date he was released from active duty.  The
application submitted in this case is dated 24 November 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.  After having had prior enlisted service in the U.S. Navy and the Army
National Guard, he was appointed as a Reserve commissioned officer on 24
July 1993 in the Field Artillery Branch.

4.  The applicant was granted Federal Recognition in the Kentucky Army
National Guard on 10 September 1993.  He was ordered to active duty for
training on 21 September 1993 to attend the FAOBC at Fort Sill, Oklahoma.

5.  The applicant received notification of formal counseling on 14 October
1993, 19 October 1993, and 6 January 1994 for academic deficiency.  The
notifications stated that "Upon failure of a third exam, I will initiate
Faculty Board action.  A Faculty Board is authorized to recommend a retest,
recycle, or declare a student a non-graduate and recommend termination of
his/her commission.  If there is any information that should be considered
while reviewing your academic record, to include personal, financial, or
medical problems, please include a brief explanation above your signature
on this form."  The applicant signed the notifications and acknowledged
that he fully understood the consequences of continued failure.  He did not
indicate information regarding personal, financial or medical problems.

6.  In a 6 January 1994 memorandum, the applicant was notified of a request
for Faculty Board due to his three examination failures.  He acknowledged
receipt of the memorandum and elected not to appear before the Faculty
Board.  He also acknowledged that he understood that by not appearing
before the board to discuss his status, the Commandant through the Faculty
Board and Commander of the 30th Field Artillery, might declare him a non-
graduate (relieved) of the course which he was presently enrolled.  He
further understood that the Commandant could terminate or recommend that
his commission be terminated and that administrative elimination from the
service could result unless the provisions of his commissioning dictated
otherwise.

7.  The U.S. Army Field Artillery School Faculty Board met on 13 January
1994. The Faculty Board recommended that the applicant be relieved from the
course and his commission terminated.

8.  The applicant was honorably released from active duty training on 2
February 1994.  His DD Form 214 does not show the FAOBC in item 14
(Military Education).

9.  On 16 February 1994, an Attorney Advisor in the Administrative Law
Division reviewed the record of proceedings of the Faculty Board and
determined that the evidence was sufficient to support the recommendations
of the board.  The Attorney Advisor stated that there was no legal
objection to declare the applicant a non-graduate and recommended to the
Kentucky Army National Guard that his commission be terminated.

10.  The Commandant approved the Faculty Board proceedings on 22 February
1994 and declared the applicant a non-graduate and relieved him from the
course.  The Commandant recommended his commission be terminated and his
Federal Recognition be withdrawn in accordance with National Guard
Regulation 635-100.

11.  On 23 February 1994, the applicant received the adverse Academic
Evaluation Report.  The preparing official marked the block "Failed to
Achieve Course Standards" in item 13 (Performance Summary) and "No" in item
15 indicating the applicant had not demonstrated the academic potential for
selection to higher level schooling/training.  In item 16 (Comments), the
preparing official indicated that the applicant was a probationary Officer
Basic Course student who had failed to meet the academic standards of the
Field Artillery School.

12.  After signing the referred report, the reviewing official referred the
report and memorandum to the applicant for acknowledgement and comment.
The applicant acknowledged receipt of the report on 14 March 1994.  He
stated that there was no section on any of the paperwork which shows he
requested termination from the course due to his father's ill health.  He
also stated that, according to the DA Form 1059, he failed the course due
to poor academic performance and this was not the case.

13.  The applicant was separated from the Army National Guard on 3 March
1994 and he was transferred to the U.S. Army Reserve on the following date.
 His NGB Form 22 does not show the FAOBC in item 12 (Military Education).

14.  Departments of the Army and the Air Force National Guard Bureau
Special Orders Number 27 AR dated 26 April 1994 withdrew the applicant's
Federal Recognition with an effective date of 3 March 1994.

15.  Army Regulation 623-1 prescribes the policies and procedures for
preparing Academic Evaluation Reports (AER).  Paragraph 1-13 states that
any report with a "NO" response; an "UNSAT" rating; a "marginally achieved
course standards" response; or a "Failed to achieve course standards"
response will be referred to the student by the reviewing official for
acknowledgement and comment.  If the "Failed to achieve course standards"
block is checked, the preparing official should address in item 16
(Comments) whether the deficiency reflects on the character/behavior of the
student or lack of aptitude in certain areas.  This regulation also states,
in part, that item 13 on the report will be left blank on AERs for students
released from a course of instruction or degree program through no fault of
their own (e.g., medical, compassionate reasons), approved retirement, or
resignation from the service and the report need not be referred; however,
the circumstances must be fully explained in item 16.

16.  Army Regulation 635-5 (Separation Documents) establishes the policies
and procedures for completion and distribution of the DD Form 214.  In
pertinent part it states that item 14 (military education) will list formal
in service training courses of 40 hours or more successfully completed
during the period of service covered by title, length in weeks, and month
and year completed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received formal counseling on three occasions for
academic deficiencies while he was a student at the FAOBC.  As result, he
was referred to a Faculty Board and the board recommended his removal from
the course and his commission terminated.

2.  He was given an opportunity on 6 January 1994 to reveal any personal
problems that should be considered during the review of his academic
records.  He signed the notification and did not include any information.
He elected not to appear before the Faculty Board where he could have
brought up his father's health.  He did not raise the issue of his request
for termination from the course until after he was released from active
duty and received the AER.  He has provided no evidence now indicating when
he requested termination.

3.  Based on the recommendations of the Faculty Board, the Commandant of
the U.S. Army Field Artillery School declared the applicant a non-graduate
and relieved him from the FAOBC.  In addition, the Commandant recommended
his commission be terminated and his Federal Recognition withdrawn.

4.  The applicant was issued an adverse AER for the period ending 22
February 1994 which appears to properly reflect "Failed to Achieve Course
Standards" in item 13 (Performance Summary) based on the governing
regulation.

5.  The applicant was released from active duty training on 22 February
1994 and was issued a DD Form 214 which does not reflect he failed to
complete the FAOBC.

6.  The applicant was separated from the Army National Guard and his
Federal Recognition was withdrawn on 3 March 1994.  He was issued a NGB
Form 22 which does not reflect he failed to complete the FAOBC.

7.  The applicant's contentions have been noted.  However, he has failed to
show through the evidence submitted with his application or the evidence of
record that the actions taken in his case were in error or unjust.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 February 1994, the date he received
the adverse AER; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 22 February 1997.  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

JS______  DJ______  MF______  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.




                                  John Slone____________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011507                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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