RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 September 2006
      DOCKET NUMBER:  AR20060001249


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Jonathan K. Rost              |     |Member               |
|     |Mr. David K. Haasenritter         |     |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 reinstatement of the rank of Sergeant (SGT)/E-5.


2.  The applicant states, in effect, that he was reduced of his rank
unfairly.  He states that according to his military records, he was absent
without leave (AWOL) for more than 9 times, failed his physical fitness
test (PT), and that he was overweight.  He states that he has documentation
from his company commander and his platoon leader that proved otherwise.
He continues to state that he never had a chance to reach a board or the
Inspector General.  He further states that he has records that detail and
support his claims, that he never failed a PT test, was overweight, or was
AWOL for more than 9 times.

3.  The applicant provides:

      a.  a copy of three letters from his previous chain of command while
he was on active duty;

      b.  a copy of his statement to his commander;

      c.  a copy of a National Guard Bureau (NGB) Form 4100 (Enlisted
Promotion Actions) and request for orders; and

      d.  a copy of a memorandum from his company commander requesting
restoration of grade for the applicant dated 30 June 1998.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 October 1999.  The application was received on 26 January
2006.

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 enlisted in the Florida Army National Guard (FLARNG) on  
1 March 1996 for a 3 years, 7 months and 8 days term of service.  His pay
grade at the time of enlistment was SGT/E-5.

4.  NGB Form 590 (Reserve Obligation and Responsibilities), shows that the
applicant was advised on 25 February 1996 of his responsibilities with
respect to satisfactory participation in the ARNG and that he understood
the conditions.

5.  The applicant's records show that he was assigned to Company C,  
1st Battalion, 124th Infantry, Perrine, Florida.

6.  On 29 June 1996, the applicant was charged with AWOL for the period 1
June 1996 to 15 June 1996 for missing his scheduled Annual Training.

7.  The applicant was notified by memorandum dated 1 August 1996,
Headquarters, 1st Battalion, 124th Infantry of his reduction of pay grade
from SGT/E-5 to pay grade SPC/E-4 for inefficiency.

8.  There is no record that shows that the applicant appeared before a
board for his reduction in grade.  However, the applicant states in his
letter that he addressed to the commander, dated 10 May 1997, that he tried
to arrange a meeting with him but the commander decided not to attend.

9.  The applicant records show he was given 30 days from receipt of the
memorandum to appeal the reduction of his pay grade.

10.  Department of the Army, Company C, 1st Battalion, 124th Infantry
Regiment General Orders Number 97-007, dated 28 April 1997, show that the
applicant received another reduction in pay grade to pay grade PFC/E-3 for
inefficiency.

11.  The applicant's notification for reduction in grade to PFC/E-3 is not
available.

12.  On 8 October 1999, the applicant was discharged from the ARNG and the
United States Army Reserve (USAR).  He was issued an honorable discharge
under the provisions of chapter 8 of National Guard Regulation 600-200.

13.  The applicant submitted letters of support from his chain of command
in his behalf.  The letters state, in effect, that the applicant was
dedicated, motivated and performed above and beyond as a professional
Soldier.  He had set the




standards and cared for his subordinates.  However, the letters do not
verify that
the applicant submitted documentation to the FLARNG that excused his
absences from training.

14.  In a letter from the applicant's commander when he reenlisted in the
FLARNG, it was stated, in effect, that as a result of the applicant's
reduction to PFC/E-3, his pay problems and his inability to meet with his
commander, the applicant stopped trying and "he became a habitual AWOL and
did not attend drills from October 1996 until February 1998 when we
recovered him and promised to investigate."

15.  The applicant's records do not show that he was accused of failing the
PT test or of being overweight.

16.  National Guard Regulation 600-200 (Enlisted Personnel Management),
paragraph 11-60, states a Soldier may be reduced one grade for
inefficiency.  Inefficiency is defined as technical incompetence or
demonstrated pattern or one or more acts of conduct that show lack of
abilities and qualities required and expected of a Soldier in that grade.
Inefficiency can include a record of unexcused absences or declaration as
an unsatisfactory participant (AR 135-91). An unexcused absence from
scheduled training, whether one unit training assemblies (UTA) or multiple
unit training assemblies (MUTA), should not normally in itself be the sole
basis to charge a Soldier with inefficiency to the degree that reduction is
warranted, nor is it intended as a substitute for judicial or nonjudicial
punishment whether in State or Federal status.  A reduction board is
authorized for Soldiers in grade SGT and higher, and the recommending
commander must provide complete justification and documentation to support
the reduction action.

17.  National Guard Regulation 600-200, paragraph 11-60, states the
commander reducing the Soldier informs the Soldier in writing, delivered in
person or dispatched by Certified Mail-Return Receipt Requested, of the
action contemplated and reasons.  The Soldier acknowledges receipt of the
memorandum in writing, and may submit any pertinent matters in rebuttal.
Mail refused, unclaimed, not acknowledged, or otherwise undeliverable, is
not used as defense against, or as a basis for an appeal of reduction, when
notification was correctly addressed to the latest official mail address
furnished to the unit by the member.

18.  Army Regulation 135-91, paragraph 4-14, states a Soldier is an
unsatisfactory participant when nine or more unexcused absences from

scheduled inactive duty training (IDT) occur during a 1-year period.
Unless an absence is authorized, a Soldier failing to attend a scheduled
drill will be charged with an unexcused absence.  When absence involves a
MUTA (or any portion of a MUTA), the charge will be one unexcused absence
for each 4-hour period not attended, but not to exceed four unexcused
absences.  Unexcused absences remain charged to the Soldier on reassignment
or reenlistment in another Reserve Component unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was reduced in rank unfairly, and
according to his records he was AWOL 9 times, failed the PT test, and was
overweight.

2.  In his own handwriting, the applicant signed his Reserve obligation and
responsibilities which indicated that he understood that if there is a
change in his personal status that affects his ability to participate
regularly with his unit, he must continue to attend UTA until excused or
until relieved of his unit assignment by proper authority.  There is no
documentary evidence that shows he was excused from drills or annual
training by the proper authority.

3.  The letter from the applicant's commander has been carefully
considered. However, he was not the applicant's commander when the
applicant failed to attend drills or annual training.

4.  Evidence of records does not show that applicant failed the PT test or
that he was overweight.

5.  In the absence of evidence to the contrary, it is presumed that the
applicant's administrative reductions were accomplished in compliance with
applicable regulation and without procedural errors that would jeopardize
his rights.  Therefore, the Board determined that the applicant’s
administrative reductions in rank were proper and equitable.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 October 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
7 October 2002.  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

___sap__  ___jkr ___  ___dkh___  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.




                                  _________Susan A. Powers_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001249                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060907                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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