RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070018309 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Anderson

Chairperson

Mr. Peter B. Fisher

Member

Mr. Jeffrey C. Redmann

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 an upgrade of his discharge.

2.  The applicant states he was released from the U.S. Army Reserve (USAR) due to his health conditions and should have received a general discharge for medical reasons.

3.  The applicant provided a copy of his Under Other Than Honorable Conditions Discharge Certificate and a copy of his USAR discharge orders, both dated 13 April 1985, in support of his application.

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 records show that he enlisted in the Tennessee Army National Guard (TNARNG) for a period of 6 years on 16 December 1978.  He was subsequently ordered to active duty for training (ADT) for a period of 12 weeks on 2 January 1979 and entered active duty on 16 January 1979.  He reported to Fort Benning, Georgia, for one station unit training (OSUT) where he completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 21 February 1979, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance in his duty in that he negligently failed to remain awake while on barrier guard on or about 12 February 1979.  His punishment consisted of forfeiture of $79.00 pay, 14 days of restriction, and 14 days of extra duty.  

4.  He was honorably relieved from ADT for completion of required service on 13 April 1979, reverted back to his ARNG status, and was assigned to Troop G, 2nd Squadron, 278th Armored Cavalry Regiment, Greeneville, Tennessee.

5.  The DD Form 214 he was issued at the time of his separation shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

6.  On 15 January 1980, the Military Department of Tennessee, Office of the Adjutant General, Nashville, Tennessee, published Orders 10-14 honorably separating the applicant from the TNARNG due to his acceptance for assignment in an Army Reserve unit and subsequently reassigning him to the 696th Maintenance Battalion, USAR, Mobile, Alabama.  

7.  The applicant's records show that he had an extensive record of unexcused absence from his scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA).  The applicant's records further show that he was notified in writing of his unexcused absence and that each notification letter advised him that if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant and transferred to the Individual Ready Reserve (IRR) for the balance of his service obligation.  The records show that he acknowledged receipt of the notification letters. 

8.  On 11 November 1980, by letter, the applicant’s immediate commander notified him that he was charged with 32 unexcused absences within a one year period and that he (the immediate commander) declared him an unsatisfactory participant and initiated action to separate him for misconduct under the provisions of chapter 7 of Army Regulation 135-178 (Separation of Enlisted Personnel).

9.  On 12 November 1980, the applicant was mailed a notification of separation letter under the provisions of Army Regulation 135-178.

10.  On 16 November 1981, Headquarters, First United States Army, Fort George G. Meade, Maryland, published Orders 218-27, reducing the applicant to private (PVT)/E-1.

11.  On 12 December 1981, Headquarters, First United States Army, Fort George G. Meade, Maryland, published Orders 240-42, relieving the applicant from his USAR unit of assignment for being an unsatisfactory participant, and assigning him to the USAR Control Group (Annual Training), effective 16 November 1981, under other than honorable conditions.
12.  On 13 April 1985, U.S. Army Reserve Personnel Center, St. Louis, Missouri, published Orders Number D-04-907107, ordering the applicant discharged from the USAR, effective 13 April 1985, with an Under Other Than Honorable Conditions character of service, in accordance with Army Regulation 135-178.

13.  There is no indication in the available records that the applicant suffered from any medical condition prior to his discharge.  

14.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  Chapter 7 of the regulation in effect at the time governed separation for misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  An honorable characterization of service is not authorized for a member who has completed entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate.

15.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a one year period.

16.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.



DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record, and the applicant has provided no convincing evidence, which shows that he incurred a medical condition while serving in the Army National Guard or in the USAR.  

2.  Evidence of record shows that the applicant was absent from scheduled UTA or MUTA on multiple occasions.  In each instance, he was notified in writing and he acknowledged the notification.  Subsequent to his extensive history of unexcused absence, his immediate commander requested his discharge from the USAR for unsatisfactory participation.  The separation authority approved the request and he was separated on 16 November 1981 and transferred to the USAR Control Group in accordance with regulatory guidance.

3.  Based on his record of indiscipline, particularly his extensive failure to attend unit drills, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  

4.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, the applicant is not entitled to either a general or an honorable discharge, with medical conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ena___  __pbf___  __jcr___  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.




							Eric N. Anderson
______________________
          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.