RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060010116 


	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.


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	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 general under honorable conditions discharge be changed to honorable and that his narrative reason for separation be changed.

2.  The applicant states that he enlisted in the Illinois Army National Guard (ILARNG) because his tuition at any Illinois State university would be paid.  He states he reenlisted for another 3 years with his unit after his first enlistment in 1984 for 6 years.  He had to move to Florida in January 1985.  However, the Florida Reserve unit told him that they did not pay for tuition so he asked that his enlistment be terminated.  He did not know it would be a general discharge.  He asks that his general discharge be upgraded to an honorable discharge based on completion of his first 6 years and his outstanding citizenship through the years.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 June 1985.  The application submitted in this case is dated 20 July 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 ILARNG on 3 August 1977 for a period of 6 years.  On 3 August 1977, the applicant signed an Orientation Statement and acknowledged that he had the satisfactory participation requirements enforcements provisions explained to him and he understood them.  He acknowledged that he understood what action was to be taken, if he changed his residence to a location where he could no longer attend drill with his present unit of assignment.  He also acknowledged that he understood the provisions of Army Regulation 600-20, regarding his appearance and conduct. 

4.  He was ordered to active duty for training (ADT) on 2 October 1977 and was released from ADT on 19 January 1978.  On the following date, he was transferred back to his National Guard unit.  
5.  The applicant signed an Army National Guard Participation Requirements Certificate on 11 June 1979 and indicated that he had been counseled relative to his Reserve obligation and responsibility, and he fully understood the requirements listed on the document.  This certificate also shows he attended annual orientations on 12 January 1980, 3 August 1980, and 5 December 1982.

6.  On 29 July 1983, the applicant signed an Oath of Extension of Enlistment or Reenlistment (DA Form 4836) and voluntarily extended his enlistment of 3 August 1977 for a period of 3 years.  His new expiration term of service was 2 August 1986.  

7.  He was promoted to specialist four on 6 August 1983.

8.  By a letter, dated 26 January 1985, from the ILARNG, the applicant was notified that he was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) 5 to 6 January 1985 and 19 to 20 January 1985 (periods 1 through 4).  This letter indicated he had accrued 4 unexcused absences within a one-year period.

9.  By a second letter dated 6 February 1985, from the ILARNG, the applicant was notified that he was absent from UTA or MUTA on 2 February 1985 and 3 February 1985 (periods 1 through 4).  This letter indicated he had accrued 4 unexcused absences within a one-year period. 

10.  On 12 February 1985, the applicant requested a conditional release by telephone.  The Conditional Release Form (NGB Form 61) indicates the reason for his release as a change of residence.

11.  On 20 May 1985, the commanding officer submitted a request for cancellation of the applicant’s extension bonus based on his unsatisfactory participation.  

12.  In a 23 May 1985, the applicant was notified that action had been initiated to terminate him from the Selected Reserve Incentive Program (SRIP) effective 17 May 1985.  The letter indicated the termination had been initiated at the request of the applicant’s commanding officer because of his voluntary Unsatisfactory Participation (Unauthorized Absences from Inactive Duty 
Training Assemblies) in the Reserve Components, as required by Army Regulation 135-91.  

13.  The applicant was discharged from the ILARNG on 13 June 1985 in the rank of private E-2 by Orders 109-24, dated 5 June 1985, under the provisions of Army Regulation 135-91 by reason of unsatisfactory participation.  His service was characterized as general under honorable conditions.  He was transferred to the U.S. Army Reserve Control Group - Individual Ready Reserve (IRR) on the following date.  

14.  The applicant was discharged from the Ready Reserve on 2 August 1986 by Department of the Army, U.S. Army Reserve Personnel Center Orders Number D-07-054717 under the provisions of Army Regulation 135-178 with an honorable discharge.

15.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau.  This office recommended disapproval of the applicant’s request due to insufficient evidence.  The opinion reiterates the applicant’s request and statements.  The opinion referenced Army Regulation 135-91, paragraph 6-2a(1)(a) which states that if the commander determines the Soldier has potential for useful service under mobilization, the Soldier will be discharged from the Army National Guard of the United States and transferred to the IRR in accordance with (IAW) National Guard Regulation 
600-200, paragraph 6-44a(1)(f).  The opinion also referenced Army Regulation 135-178, paragraph 9-6, which states that the service of Soldiers discharged because of unsatisfactory performance would be characterized as honorable or general (under honorable conditions) IAW chapter 2, section III.

16.  Army Regulation 135-178 (Separation of Enlisted Personnel), in pertinent part, stated that the honorable characterization of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty for military personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge was warranted when significant negative aspects of the Soldier's conduct or performance outweighed positive aspects of the Soldier's military record.

17.  Army Regulation 135-91, in effect at the time, stated that enlisted members who were obligated by statute or contract would be charged with unsatisfactory participation when without proper authority they accrued in any 1-year period, a total of nine or more unexcused absences from scheduled drills; failed to obtain a unit of assignment during a leave of absence, granted per section IV of this regulation; or failed to attend or complete annual training (AT).  The regulation also stated that statutorily or contractually obligated enlisted members who were charged with unsatisfactory participation could be transferred to the IRR.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had missed unit drills without being excused from 5 to 6 January 1985 and 19 to 20 January 1985 (4 periods) and 2 February 1985, and 3 February 1985 (4 periods) for a total of 8 periods.  He received notifications that he had missed these unit drills without being excused.  He had signed an Army National Guard Requirements Certificate and had Annual Orientations which informed him of attendance requirements.  He clearly knew the requirements for satisfactory participation and the consequences of not following those requirements.

2.  In the absence of the applicant’s letter of instructions to show he had accrued a total of nine or more unexcused absences from scheduled drills within a 1-year period, it is presumed he had and his administrative discharge under the provisions of Army Regulation 135-91 for unsatisfactory participation was administratively correct and in conformance with applicable regulations.  

3.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge and appropriately characterized his service as general under honorable conditions.

4.  The applicant’s statements were carefully reviewed; however, there also is no apparent error, injustice, or inequity on which to base recharacterization of his general discharge to honorable or to change his narrative reason for separation.  At this point in time, there is insufficient evidence for the Board to substitute its judgment for that of the commander in regards to the character of his service.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 June 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 June 1988.  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

xx______  x______  x______  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060010116
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070508
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. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.