RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 OCTOBER 2006
      DOCKET NUMBER:  AR20050017158


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Gunlicks                |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Scott Faught                  |     |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 that his record be corrected to show
satisfactory participation in the United States Army Reserve (USAR).  He
further requests that his student loan repayment benefits be reinstated.

2.  The applicant states that during the period in question from 1995 to
1996 his unit, 337th Combat Support Hospital (CSH), was in turmoil.  He
explained that Soldiers were reassigned, new platoon sergeants were
assigned, and several commanders were rotated.  In April 1995, he missed
drill assembly because of car trouble.  He notified his new platoon
sergeant and he was excused him from drill.  In June 1996, he was
involuntarily assigned to the Individual Ready Reserve (IRR) and as a
result, he lost $20,000.00 under the Student Loan Repayment Program (SLRP).
 The applicant quotes Army Regulation 135-91, and maintains that the
commander has the authority to excuse an absence if the absence is caused
by circumstances beyond the Soldier’s control.  The applicant argues that
the car trouble was beyond his control.  Additionally he states that he
also followed protocol for the training weekend when he planned to be out
of the state.  He said in both instances, he was excused by his platoon
sergeant.

3.  The applicant provides his self-authored statement, orders, Inspector
General (IG) correspondence, Student Loan Repayment Program (SLRP), and
supporting statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 June 1996.  The application submitted in this case is
dated         19 November 2005.

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.  The applicant’s records show he enlisted in the USAR on 8 March 1990.
A Statement of Understanding United States Army Incentive Enlistment
Program prepared during his enlistment processing, confirms that the
applicant enlisted for the LRP incentive option.

4.  The LRP provisions in the Statement of Enlistment required, in
pertinent part, that the applicant acknowledge and understand that the
terms of the addendum would remain in force as long as he continued to
participate satisfactorily under the contractual agreement as a member of
the Selected Reserve.  He further understood that the terms of the
agreement and his entitlement to loan repayment under the SLRP would be
terminated should he “Become an unsatisfactory participant per AR 135-91.”
The applicant signed his statement of enlistment verifying that he
understood “all promises and agreements, whatsoever concerning my
entitlement, reenlistment, or extension under the SLRP.”

5.  Orders dated 21 June 1996, released the applicant from the 337th CSH
for “Unsatisfactory Participation” and reassigned him the Army Reserve
Personnel Center (Annual Training) effective 30 June 1996.

6.  Correspondence from the IG dated 3 November 1996, verifies that the
applicant submitted a request dated 29 October 1996 concerning due process
in the matter of him being declared as an unsatisfactory participant and
reduction in grade.  The IG stated that his request was under the
jurisdiction of the Army Reserve Personnel Center (ARPERCEN) IG and
referred the correspondence accordingly.

7.  On 8 October 1997, the Illinois Regional IG provided their final
response to the applicant concerning his unsatisfactory participation and
reduction in grade.  The IG stated that according to the Department of the
Army Forms 1379 (Unit Record of Reserve Training) and the unit sign-in
rosters, the applicant had a total of 15 “U’s” for unsatisfactory
participation from April 1995 through April 1996.  Additionally, four other
Unit Training Assemblies were coded for reschedule training with no
indication that the training had been performed and seven excused absences.
 The IG admitted that there were a total of 53 Unit Training Assemblies
during April 1995 through April 1996.

8.  The IG stated that according to Army Regulation 135-91, the only valid
reasons for excused absences from training were sickness, injury, or
circumstances beyond a service member’s control.  Only a general officer
may grant an exception to unexcused absences although the authority may be
delegated to commanders in the grade of O-5, battalion commander or
equivalent.  The IG noted that a service member’s overall record of
performance was to be used when determining whether an exception to
unexcused absences should be granted.  The IG stated that although the
applicant was advised that his previous commander agreed to waive half of
his U’s, that information was wrong.

9.  On 14 April 1996, the company commander requested an exception to
policy for the applicant.  The commander stated that during the April 1994
drill the applicant had advised his platoon sergeant of car trouble and was
not aware that he had not received an excused absence.  Subsequently, the
applicant received notice that he had received four unexcused absences.
The commander admitted that the applicant attempted to reconcile this error
through his chain of command however, the previous commander was unable to
assist due to a lack of documentation.  The commander concluded that he was
convinced that the applicant received unsatisfactory performance in error
and requested that two of the unexcused absences be expunged.

10.  On 5 December 1999 an officer, on behalf of the applicant, submitted a
memorandum to the O-5 explaining that two years ago the applicant had
multiple incidents where he called the unit to obtain excused absences.
The officer said that the applicant followed appropriate procedures, but
his absences were not excused due to failure of the unit to process the
absences properly.  The officer said the unit’s failure to process the
applicant’s paperwork properly should not result in punishing the Soldier.

11.  The applicant provided a sworn statement from his former platoon
sergeant dated 28 October 2005.  The platoon sergeant verified that around
April 1995 he approved the applicant’s request for rescheduling training.
He said as the platoon sergeant, he was authorized to approve such requests
under unit protocol.  He recalled that he also had the company commander to
approve the request for rescheduled training.  The platoon sergeant said
the applicant’s paperwork was lost by the unit administrator on multiple
occasions and the applicant’s absence from drill was incorrectly recorded
as “unexcused.”

12.  In the processing of this case, the Board obtained an advisory opinion
from Headquarters, United States Army Reserve Command, G-1, Fort McPherson,
Georgia.  The Army Reserve G-1 said during the period in question, a drill
consisted of four periods of Inactive Duty Training per weekend, which
equaled 48 scheduled Unit Training Assemblies (UTA) in 1 year, with some
weekends consisting of five UTAs.  A review of the applicant’s retirement
record indicated that there were 53 scheduled UTAs beginning in April 1995
through April 1996.  The applicant missed 27.  The applicant stated that he
called and was subsequently excused from the April 1995 drill, a total of
four absences.  Additionally, he was excused from another drill a few
months later.  The Army Reserve G-1 said allowing for the excusal of these
8 absences plus the seven excused absence was only 15.  The remaining 12
unexcused absences exceeded the unsatisfactory participant regulatory
requirement of nine unexcused absences for a one-year period.  To support
their argument and recommendation for disapproval, the Army Reserve G-1
provided a listing of the applicant’s drill record which shows that he
participated in 23 drills from April 1995 to April 1996.

13.  On 12 September 2006, the applicant responded to the advisory opinion
rendered by the Army Reserve G-1.  The applicant reiterated that he was
excused from drill in April due to car problems.  He also maintains that on
or around June 1995 he rescheduled his drill in advance due to a previous
commitment.  He maintains that his platoon sergeant excused him from the
UTA; however, the absence was subsequently labeled as “unexcused.”  The
applicant argues that the commanding officer could not ascertain who in the
chain of command could correct the record and therefore, his inexperience
led to the June absence erroneously being designated as unexcused.

14.  In February 1996, the applicant stated that he arranged for absence
from UTA in March 1996, and the absence was listed as unexcused.  The
applicant argues if it was not for the unit’s paperwork issues, he would
not have exceeded the regulatory requirement of no more than nine unexcused
absences within a
1-year period.  The applicant also refuted the advisory statement “that he
did not perform Annual Training for the years 1994, 1995, or 1996 meeting a
second regulatory requirement for unsatisfactory participation” and
provides a copy of his “Retirement Summary.”  The applicant’s retirement
points lists “14” active duty points from March 1993 to March 1994, “0”
points from March 1994 to March 1995 and “0” from March 1995 to March 1996.


15.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) states, in
pertinent part, that Troop Program Units Soldiers are required to
participate in at least
48 scheduled inactive duty trainings (IDTs), and not less than 14 days of
annual training.  Satisfactory participation is defined as attending all
scheduled IDTs unless excused by the unit commander or granted a leave of
absence.  Soldiers who do not receive credit for attendance will be charged
with an unexcused absence.



16.  Additionally, the regulation states a Soldier may be excused from
scheduled IDT or active training when sickness, injury, or some other
circumstance beyond the Soldier's control caused the absence.  All other
situations not specifically identified are considered unexcused absences.
A Soldier excused for a reasons cited above 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.
Absence caused by sickness or injury requires certification from a
physician or medical officer.  The Soldier must furnish the required
evidence within 15 days of the commander's request.  At the discretion of
the appropriate commander, a Soldier may be scheduled to make up the
excused absence.

17.  Army Regulation 135-91, defines unsatisfactory participation as (1)
when ordered to active training if, without proper authority, the Soldier
fails to attend or complete the entire period of active training; and (2)
if required to attend 48 IDTs Soldiers accrue 9 or more unexcused absences
in any 1-year period.

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by the IG and substantiated by the Army Reserve G-
1 clearly shows that during the period April 1995 through April 1996 the
applicant was only credited with participating in 23 UTAs.  The advisory
opinion took into consideration 7 excused absences and an additional 8
which were not documented, and still his unexcused absences exceeded the
regulatory requirement of 9.

2.  There is no evidence and the applicant did not provide any to prove
that his release from his Reserve unit for “Unsatisfactory Participation”
was in error.  Since there is no basis to correct the applicant’s record,
there is likewise no basis to grant his request that his student loan
repayment benefits be reinstated.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         29 June 1999.  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

___JG  __  ___MF __  ___SF __  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.




                                  _____James Gunlicks________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017158                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061005                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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