RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060010944 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Marla Troup

Chairperson

Mr. John Heck

Member

Mr. Donald Lewy

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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he served with honor and respect. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 15 January 1981.  The application submitted in this case is dated 17 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 Army National Guard on 12 January 1976 for a period of 6 years.  He was ordered to active duty on 11 July 1976 for training and released from active duty on 29 October 1976.

4.  Records contain a Letter of Instruction - Unexcused Absence, dated 26 July 1980, which notified the applicant that he had been absent from the scheduled annual training from 12 July 1980 to 26 July 1980 and he had accumulated 15 unexcused absences within a one-year period.  Paragraph 2 of this letter informed him that under the provisions of Army Regulation 135-91, he was required to attend all scheduled unit training assemblies and annual training periods.  Paragraph 7 of this letter informed him that if he accumulated nine unexcused absences within a one-year period, he could be declared an unsatisfactory participant.  

5.  In November 1980, the applicant's unit commander initiated a recommendation for separation due to misconduct (unsatisfactory participation) under the provisions of Army Regulation 135-178 and Army Regulation 135-91.  He based his recommendation for separation on the applicant’s unauthorized continued and willful absence from scheduled unit training assemblies and/or annual field training.  

6.  Records show the applicant failed to exercise his privileges by not returning the appropriate form within the given time frame which was considered to be a waiver of his rights.

7.  The separation approval authority action is not available.

8.  On 15 January 1981, the applicant was discharged under other than honorable conditions from the Army National Guard under the provisions of Army Regulation 135-178, chapter 7, for unsatisfactory participation.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He had served 5 years and 4 days of creditable service.

9.  On 23 August 1982, the applicant was discharged under other than honorable conditions from the U.S. Army Reserve. 

10.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states that, before 
1 June 1984, all personnel incurred a 6-year statutory obligation on initial entry into the Armed Forces.  It states that enlisted Soldiers who are obligated by statute or contract will be charged with unsatisfactory participation when, without proper authority, they accrue in any 1-year period a total of 9 or more unexcused absences from scheduled drills.
   
11.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Chapter 7 of the regulation, in effect at the time, 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.  The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.

12.  Army Regulation 135-178 provides, in pertinent part, that the honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty 
for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Army Regulation 135-178, provides, in pertinent part, that if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions (a general discharge).  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance outweigh positive aspects of the Soldier’s military record.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he served with honor and respect, evidence of record shows he had accumulated 15 unexcused absences within a one-year period.  

2.  It must be presumed that the applicant’s discharge under the provisions of Army Regulation 135-178 was administratively correct and in conformance with applicable regulations and that his characterization of service was based upon the particular circumstances of his case.  Therefore, there is no basis for granting his request for an honorable discharge or a general discharge.

3.  Records show the applicant should have discovered the alleged injustice now under consideration on 15 January 1981; therefore, the time for the applicant to file a request for correction of any injustice expired on 14 January 1984.  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

MT_____  __JH____  _DL_____  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.




__Marla Troup________
          CHAIRPERSON




INDEX

CASE ID
AR20060010944
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19810115
DISCHARGE AUTHORITY
AR 135-178 Chapter 7  
DISCHARGE REASON
Unsatisfactory participation
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.