RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070007027 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Jeffrey Redmann

Chairperson

Ms. Rea Nuppenau

Member

Mr. Dennis Phillips

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, in effect, that the characterization of service reflected on his NGB Form 22 (Report of Separation and Record of Service) be upgraded to honorable.

2.  The applicant states, in effect, he was young, immature and under extreme duress due to the loss of his foster mother and he was not able to get transportation to his unit monthly training assemblies.

3.  The applicant provides copies of his General Educational Development (GED) and college transcripts in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that occurred on 29 November 1991, the date of his discharge from the Virginia Army National Guard.  The application submitted in this case is dated 19 March 2007.  The application submitted in this case is dated 19 March 2007.

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 record shows he enlisted in the Army National Guard of Virginia on 25 February 1989. Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 11 B (Infantryman).  The highest rank he attained while serving in the Army National Guard of Virginia was private first class/pay grade E-3.

4.  The applicant's record does not show any significant acts of valor during his military service.



5.  On 15 July 1991, the company commander issued a letter of instruction which shows the applicant would be reduce one grade due to his lack of attendance at unit monthly training assemblies. 

6.  On 25 July 1991, the 29th Infantry Division (Light), Virginia Army National Guard, issued Orders Number 35-2, reducing the applicant to private/pay grade E2 from private first class/pay grade E3 for inefficiency.

7.  On 8 August 1991, the applicant's unit commander administratively charged him with four unexcused absences for failure to perform his required split unit training assemblies on 13 and 14 July 1991.  The memorandum notifying the applicant of that decision also contained the unit attendance policies, the applicant's requirement to attend all unit-training assemblies, unit annual training periods, and informed the applicant of the date of the next unit training assembly on 7 September 1991 at 0730 hours.

8.  In an undated memorandum, the applicant's unit commander charged him with three unexcused absences for unsatisfactory performance of his duties on 7 and 8 September 1991.

9.  On 22 October 1991, the applicant's company commander sent him a memorandum of instruction for unexcused absences which shows the applicant was absent from 18 through 20 October 1991 for five unit training assembles.  The company commander further wrote that the applicant accrued more than eight unexcused absences within a one-year period.  The company commander's written instruction to the applicant shows that if the applicant accrued nine unexcused absences within a one-year period he would be declared an unsatisfactory participant and transferred to the Individual Ready Reserve.

10.  On 28 October 1991, the company commander issued a memorandum of intent to the applicant, which shows that the commander initiated administrative action to separate the applicant from the Virginia Army National Guard for unsatisfactory performance because he accrued more than nine unexcused absences from unit training assemblies within a one-year period.

11.  The applicant did not respond in writing to the company commander's intent to separate memorandum.  Due to his lack of response, the applicant waived his right to be considered by an Administrative Separation Board and was discharged on 29 November 1991 from the Virginia Army National Guard and 


transferred to the United Sates Army Reserve Control Group (Annual Training).  The reason for discharge was unsatisfactory participation and the characterization of service was under honorable conditions.  The Soldier was not available to sign his copy of NGB Form 22 at the time of his discharge.  The applicant was age 22 at that time.

12.  On 25 February 1997, the applicant was discharged from the United States Army Reserve, by Orders D-02-715650, published by the United States Army Reserve Personnel Center, St. Louis, Missouri.  The type of discharge was honorable. 

13.  The applicant provided a copy of his GED transcript, dated 6 January 2004, that shows he passed the GED exam.  He also provided a copy of his unofficial transcripts from his local community college, dated 26 October 2005, that shows he earned 35 credit hours toward his associates' degree as a social work technician. 

14.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, participation Requirements, and Enforcement Procedures) states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1 year period.

15.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) states, in pertinent part, that Soldiers discharged from the State ARNG will be transferred to the Individual Ready Reserve to complete their contractual service obligation.  These discharges will be characterized as honorable or under honorable conditions.  A Soldier may receive an under honorable conditions discharge characterization of service whose military record is not sufficiently meritorious to warrant an honorable discharge. 

16.  National Guard Regulation (NGR) 600-200 governs procedures for enlisted personnel of the Army National Guard.  Paragraph 8-27 covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG.  Paragraph 8-27(g) pertains to unsatisfactory participant. 







DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NGB 22, character of service, should be upgraded to honorable from under honorable conditions.  The applicant's contention is, in effect, that he was young, immature and under extreme duress due to the loss of his foster mother and he was not able to get transportation to his unit monthly training assemblies.

2.  The applicant was age 22 when he was discharged from the Army National Guard.  Since enlistment is authorized as young as age 17 (with parental consent), the Board does not accept age and lack of maturity as matter of mitigation.  As for the loss of his foster mother, the applicant has not provided any documentation to support that his foster mother died.  However, even if he had submitted substantiating evidence, this would be insufficient to warrant upgrading a properly characterized discharge.

3.  The evidence of record confirms that the applicant's discharge processing was accomplished in accordance with the regulations in effect at the time of discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is noted that the applicant waived his right to legal counsel, elected to waive his right to have his case considered by a board of officers and he chose not to submit a statement on his own behalf. 

4.  The applicant was an unsatisfactory participant.  His Army National Guard unit attendance history shows he had over nine unexcused absences.  The applicant does not provide any extenuating circumstances for these absences.  Under the governing regulations of the time, the battalion commander could approve a discharge for unsatisfactory participation and characterize the service as under honorable conditions.  The applicant's attendance history shows his record of service is not sufficiently meritorious to warrant a characterization of honorable for his period of service in the Army National Guard.  The applicant was transferred to the United States Army Reserve and given an honorable discharge on 25 February 1997 upon the completion of his contractual obligation. 

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



6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 November 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 November 1994.  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

___JR___  __RN ___  __DP___  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.




_____Jeffrey Redmann_______
          CHAIRPERSON




INDEX

CASE ID
AR20070007027
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070809
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.
110.00
2.

3.

4.

5.

6.