RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 October 2007
      DOCKET NUMBER:  AR20070007612


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 from the Army National Guard (ARNG) be upgraded to fully
honorable.

2.  The applicant states that in December of 1990 his Utah drivers license
expired and he could not obtain a valid Texas drivers license, so he could
not attend drill.  At the time, he was living at his parents’ home in
Keller, TX and his unit was in Mineral Wells, TX, about 75 miles away.  He
was unable to arrange transportation to drill for the months of January and
February of 1991.  On        10 March 1991, he arrived at his unit and told
his commander about his transportation situation.  His commander had him
sign the first memorandum, dated 10 March 1991, for being absent from drill
for the month of February 1991. He was told to make up the drill time for
February, so he stayed until 5:00 p.m. cleaning the building.

3.  The applicant states that in April 1991 he received a letter of
instruction for missing drill in January 1991.  That seemed wrong, since he
had already signed a memorandum for February a month earlier and spoke to
his commander about his situation.  His commander told him not to worry
about the memorandum, that he was having the applicant transferred to the
Inactive Army Ready Reserve where he would have a commitment until 1998.
So, from his point of view at that time, he was told that he was in the
Inactive Army Ready Reserve until 1998 and they would contact him if the
need arose.  That was the last time he personally heard from the unit in
Mineral Wells.

4.  The applicant states that, while trying to get some records from the
Army, he found out that he was given a general discharge under honorable
conditions.  He also found other letters of instruction and the memorandum
for separation.   He did not live with his parents at the time the other
letters of instruction and memorandum were sent.  The forms look to have
been accepted by either his father or his brother.  He was not on good
speaking terms with his parents and brother during that time.  He was never
informed of the correspondence from the unit and therefore he had no
opportunity to respond to them.  He believes that violated his due process
rights.

5.  The applicant provides three letters of instruction, dated 16 March
1991,       16 April 1991, and 1 July 1991, the latter two with certified
mail receipts; a notification of separation memorandum, dated 16 July 1991;
a DA Form 4187 (Personnel Action), dated 17 November 1991; and a National
Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the ARNG on 1 May 1990.  He attended active
duty for training from 21 May through 21 September 1990 and was awarded
military occupational specialty 62E (Heavy Construction Equipment
Operator).

3.  The applicant acknowledged receiving a Letter of Instructions –
Unexcused Absence, dated 16 March 1991, for being absent from the scheduled
unit training assembly on 9 through 10 February 1991.

4.  The applicant signed for a Letter of Instructions – Unexcused Absence,
dated 16 April 1991, for being absent from the scheduled unit training
assembly on      12 through 14 January 1991.

5.  The applicant was sent a Letter of Instructions – Unexcused Absence,
dated  1 July 1991, for being absent from the scheduled unit training
assembly on       29 June 1991.  This letter informed him he would have
accrued 9 unexcused absences within a 1-year period unless this absence was
excused.  The signature on the certified mail receipt does not appear to be
the applicant’s signature.

6.  The applicant was sent a notification of separation under the
provisions of Army Regulation 135-178, dated 16 July 1991.

7.  On 17 November 1991, the applicant’s commander recommended he be
separated from the ARNG for unsatisfactory participation.  On 10 December
1991, the applicant was discharged from the ARNG with a general discharge
under honorable conditions and was transferred to the U. S. Army Reserve
(USAR) Control Group (Annual Training).

8.  Effective 5 May 1998, the applicant was honorably discharged from the
USAR upon completing his statutory military service obligation.

9.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) defines Army
National Guard and USAR service obligations.  It prescribes policies and
procedures governing the various types of service obligations and
participation requirements.

10.  Army Regulation 135-91 states general officer commanders are
authorized to grant exceptions to unexcused absences.  This authority may
be delegated to commanders in the rank of lieutenant colonel or higher.  It
states enlisted Soldiers who are declared unsatisfactory participants may
be transferred to the IRR.

11.  Army Regulation 135-91 states that, effective 1 June 1984 all
personnel incurred an 8-year statutory obligation on initial entry into the
Armed Forces.  It states an enlisted Soldier who is obligated by statute or
contract will be charged with unsatisfactory participation when, without
proper authority, he or she accrues a total of 9 or more unexcused absences
from scheduled drills in any    1-year period.

12.  Army Regulation 135-91 states a Soldier failing to attend a scheduled
unit training assembly or multiple unit training assembly will be charged
with an unexcused absence unless excused.  The 1-year period will begin on
the date of the absence and end 1 year later.  The unit commander will send
a Letter of Instructions – Unexcused Absence to the Soldier either in
person or by certified mail after the 4th unexcused absence in a 12-month
period and after each succeeding unexcused absence up to and including the
9th absence in a         12-month period.

13.  Army Regulation 135-91 states that, when the notices are personally
delivered, the Soldier's signature will be obtained on the file copy as
acknowledgment of receipt.  When certified mail is used, a copy of the
notice and either a post office receipt confirming delivery or the returned
unopened envelope showing the notice was not delivered will be filed.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  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 Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant received the Letter of
Instructions for his January 1991 unexcused absence in April 1991, after he
had already personally received the March 1991 Letter of Instructions for
his February 1991 unexcused absence.  However, as the applicant
acknowledges that he did not attend unit training in January 1991, the
timing of receipt of the Letter of Instructions does not appear to have
been significantly detrimental to him.

2.  The applicant stated that his commander was having (i.e., a future
action) the applicant transferred to the “Inactive Army Ready Reserve”
where he would have a commitment until 1998.  The applicant next stated
that, “…from his point of view at that time…” he was told that he was
(i.e., a present action) in the “Inactive Army Ready Reserve.”  It is
acknowledged that the applicant had been in the Army only a short time, but
he had completed training.  A reasonably prudent Soldier should not have
believed he had been transferred until he had a document in hand to show he
had actually been transferred.

3.  It is acknowledged that the applicant’s notification of separation had
been sent to his parents’ address, where he had previously been living.
However, since he had no document to show he had yet been transferred out
of the ARNG, a reasonably prudent Soldier would have kept his ARNG unit
informed of any address change.  He was never informed of the
correspondence from the unit concerning his separation and had no
opportunity to respond to it only because he failed to take reasonable
steps to keep his unit informed of his new address or a reliable point of
contact.

4.  Based on the above, there is an insufficient basis that would warrant
granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__hof___  __wb____  __mjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ___Hubert O. Fry_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007612                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071023                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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