RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060015781 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 general under honorable conditions discharge be upgraded to honorable.  He further requests that his reason for separation on his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with the ending period 5 June 1987 be changed.

2.  The applicant states, in effect, that his NGB Form 22 incorrectly shows the reason for separation as unsatisfactory performance.  He further states that the character of service should be changed from general discharge to an honorable discharge.  At the time, he was attending college and was in the Reserve Officers' Training Corps (ROTC) program.

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 5 June 1987.  The application submitted in this case is dated 9 November 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 Indiana Army National Guard (INARNG) on 
22 January 1982 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 12B (Combat Engineer).  

4.  By memorandum dated 13 April 1986, A Company, 28th Supply and Transportation Battalion informed the applicant he had been absent from four scheduled unit training assemblies (UTA) or multiple unit training assemblies (MUTA) and unless the absences were excused he would have accrued 
4 unexcused absences.  The document had an attached Receipt for Certified Mail, signed by the applicant, dated 23 April 1986. 

5.  The applicant was given 15 days within receipt of the memorandum to reply to give the reason(s) why he was absent from “12-13 Apr 86.”

6.  The memorandum further stated “As you are aware, if you accumulate nine unexcused absences within a one-year period, you can be declared an unsatisfactory participant.  If this action is taken, you may be transferred to the Individual Ready Reserve (IRR) for the balance of your obligation.”

7.  By memorandum dated 20 October 1986, A Company, 28th Supply and Transportation Battalion informed the applicant he had been absent from eight scheduled UTAs or MUTA and unless the absences were excused he would have accrued 8 unexcused absences.  The document had an attached Receipt for Certified Mail, signed by the applicant, dated 21 October 1986.

8.  The applicant was given 15 days within receipt of the memorandum to reply to give the reason(s) why he was absent from “18-19 October 1986 for 1-4 pds.”

9.  The memorandum further stated “As you are aware, if you accumulate nine unexcused absences within a one-year period, you can be declared an unsatisfactory participant.  If this action is taken, you may be transferred to the IRR for the balance of your obligation.”

10.  By memorandum dated 17 April 1987, A Company, 28th Supply and Transportation Battalion informed the applicant he had been absent from eight scheduled UTAs or MUTA and unless the absences were excused he would have accrued 12 unexcused absences.  

11.  The applicant was given 15 days within receipt of the memorandum to reply to give the reason(s) why he was absent from “14 Mar87 (1 period) and 15 March 1987.”

12.  The memorandum further stated “As you are aware, if you accumulate nine unexcused absences within a one-year period, you can be declared an unsatisfactory participant.  If this action is taken, you may be transferred to the IRR for the balance of your obligation.”  The document also shows upon notified of the memorandum the applicant refused to sign it in the presence of unit personnel on 24 April 1987.

13.  The applicant's discharge proceedings are not available.

14.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his NGB Form 
22 shows that he was discharged on 5 June 1987 under the provisions of the Military Department of Indiana Adjutant General's Office Orders 116-13, dated 
9 June 1987, by reason of "Unsat Performance" with a characterization of service of general under honorable conditions.  He was transferred to the U. S. Army Reserve Control Group (Reinforcement).

15.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), 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 single or MUTA 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.

16.  Army Regulation 135-91, paragraph 6-2, states when it has been determined that an Army National Guard enlisted Soldier is an unsatisfactory participant, the immediate commander will initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant.  These proceedings are applicable when the unsatisfactory participant is an enlisted Soldier assigned to an Army National Guard unit.  If the commander determines the Soldier has potential for useful service under mobilization, the Soldier will be reassigned to the IRR. 

17.  Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 2-9a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  An honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his NGB Form 22 incorrectly shows the reason for separation as unsatisfactory performance.  It is acknowledged that his NGB Form 22 erroneously shows his reason for separation as unsatisfactory performance.  The reason for separation should have shown he was separated due to being an unsatisfactory participant.  However, since he does not ask for this specific change, which may not be what he actually desires, the correction will not be made at this time.
2.  Evidence of record shows that the applicant signed the Receipt for Certified Mail of his commander's notification Letter of Instructions – Unexcused Absence memorandums on 23 April 1986, 21 October 1986, and 24 April 1987.  He was well aware that if he had nine unexcused absences within a one-year period he could be declared an unsatisfactory participant.  

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he accrued 12 unexcused absences within a one-year period.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 June 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
4 June 1990.  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

__WC___  ___DL __  __RV  ___  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.




__        _ William F. Crain ___
          CHAIRPERSON




INDEX

CASE ID
AR20060015781
SUFFIX

RECON

DATE BOARDED
31 MAY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.0135.0000
2.
110.0000.0000
3.
110.0200.0000
4.

5.

6.