RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070016397 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was never told he was being discharged from the Army National Guard.  He broke his left hand while loading an 8 inch howitzer during active duty training at Camp Grayling, Michigan.  His unit did not keep records of attendance, he did not get paid, and the place was a mess.  He got hurt and that is why he was discharged.  Also, he wasn't compensated for his pain and suffering.

3.  The applicant does not provide any additional documentation. 

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's military personnel record shows that he enlisted in the Army National Guard on 27 October 1977.  At the time he was advised of his responsibilities with respect to satisfactory participation in the Army National Guard, and he indicated that he understood those conditions.  

3.  He was ordered to initial active duty for training on 29 January 1978.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 13B (Cannon Crewman).

4.  The applicant was honorably released from active duty for training and transferred to the State of Michigan Army National Guard on 28 April 1978.  He had completed 3 months of net active service this period.

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 19 July 1978, shows that the applicant damaged the tendon of his left hand while on a field maneuver during 8-23 July 1978 at Camp Grayling, Michigan.  His medical records show he was treated for the injury and there was no indication of a fracture or a break.

6.  The applicant's records contain a history of 18 unexcused absences within a  
12 month period.  The records also show the applicant was notified of each missed multiple unit training assembly (MUTA) by certified mail, however, the mail was returned to sender as unclaimed.  

7.  On 3 June 1981, the State of Michigan Department of Military Affairs sent a letter to the applicant to notify him of the decision to discharge him from the Army National Guard for misconduct and to transfer him to the Individual Ready Reserve, effective 20 June 1981.  His records show he did not acknowledge receipt of the notification or elect to appear before a Board.  Therefore, the decision was made entirely upon the contents of his record to discharge him by reason of misconduct.

8.  On 20 June 1981, the applicant was discharged from the Army National Guard.  He was issued a under other than honorable conditions discharge for misconduct under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) and Army Regulation 135-178 (Separation of Enlisted Personnel).

9.  National Guard Regulation 600-200, governs procedures for enlisted personnel of the Army National Guard.  Chapter 7 of NGR 600-200 covers, in pertinent part, discharge and separation of enlisted personnel due to unsatisfactory participation and refers to Army Regulation 135-178.  Army Regulation 135-178 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.

10.  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 drill 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence shows the applicant had a history of 18 unexcused absences within a 12 month period and the State of Michigan made several attempts to notify him that he was being charged with unexcused absences, but failed.  As a result he was discharged for misconduct under the provisions of National Guard Regulation 600-200 and Army Regulation 135-178.

3.  There is no evidence that indicates he was discharged as a result of being hurt.

4.  The applicant was advised on 26 October 1977 of his responsibilities with respect to satisfactory participation in the Army National Guard and he understood those conditions.  There is no documentary evidence that shows he was excused from drills or annual training by the proper authority.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MDM__  __JCR__  __RCH__  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.




___Mark D. Manning__
      CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.