IN THE CASE OF:	  

	BOARD DATE:	  01 July 2008

	DOCKET NUMBER:  AR20080003791 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to an honorable discharge.

2.  The applicant states that both of his parents had died when he joined the Army at age 18 and he really did not know what to do.  He states that he may have made an error in judgment by joining the Army; however, he was young and he is the first to admit that he made some mistakes.  He states that he has moved on and that he has received degrees in sociology and criminal justice.  He states that it has been over 20 years since he was discharged; that a person should not have to continue to pay for being caught in a bad economic situation; that a lack of parental supervision in one's youth and perhaps a bad decision or a error in judgment should not be held against an individual for the rest of his/her life; that he admits he was a young Soldier with problems; and that his record does not take into account the stress and strain placed on a young man who had lost both of his parents before his 18th birthday.  The applicant states that he has been denied jobs in law enforcement because he was furnished a general discharge.

3.  The applicant provides no additional documentation 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.  On 19 November 1981, the applicant enlisted in the Texas Army National Guard (TXARNG) at age 18, for 6 years, in the pay grade of E-1.  On his Application for Enlistment, the applicant indicated that both of his parents were deceased.  On 8 February 1982, the applicant was ordered to 21 weeks of active duty training and he went on to successfully complete his training as a radio teletype operator.  He was released from active duty and returned to Company B, 249th Signal Battalion, TXARNG, San Antonio, TX, on 31 July 1982.

3.  The applicant was promoted to the pay grade of E-2 on 1 February 1983 and he was promoted to the pay grade of E-3 on 1 July 1983.

4.  On 20 October 1983, a Letter of Instruction (LOI) was forwarded to the applicant regarding his unexcused absences.  The LOI indicates that the applicant had incurred two unexcused absences due to absences without leave (AWOL) within a 1-year period.  The applicant was informed that absence from training assemblies may be excused only for the reasons of sickness, injury, emergency or other circumstances beyond his control; and that if his absence was for one of the reasons previously stated, he should furnish his unit an appropriate affidavit or certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency or circumstances, requesting that he be excused.  He was further informed that his absence could not be excused unless his request, affidavit, or certification was received within 15 days of the date that he received the LOI.  The applicant was told that the next training assembly was scheduled for 19 November 1983.





5.  On 21 November 1983, the applicant was reduced to the pay grade of E-2, under the provisions of National Guard Regulation 600-200, paragraph 6-32, for misconduct, due to failure to attend multiple unit training assemblies (MUTAs).

6.  The available records indicate that the applicant was notified on numerous times that he had unexcused absences due to AWOL and on 13 January 1984, he was notified that he had accumulated ten unexcused absences due to AWOL. His records show that he acknowledged receipt of a number of the notifications. 

7.  On 29 May 1984, the applicant was notified that he was being recommended for separation from the Army National Guard under the provision of National Guard Regulation 600-200, paragraph 7-10r, for misconduct, due to unsatisfactory participation.  His commander cited continued and willful absences as the basis for his recommendation.

8.  On 21 August 1984, Orders 161-28 were published discharging the applicant from the TXARNG effective 11 August 1984 and transferring him to the United States Army Reserve (USAR) Control Group (Reinforcement).  He had completed 2 years, 8 months, and 23 days of total service for pay purposes and he was furnished a General Discharge Certificate.

9.  On 28 May 1997, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

10.  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 occur during a 1-year period.

11.  National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, sets forth the basic authority for the personnel management of enlisted personnel of the Army National Guard (ARNG).  Chapter 7, paragraph 
7-10 provides for discharge from the ARNG of the State only for enlisted personnel with a remaining Reserve service obligation.  This paragraph also states, in pertinent part, that unless transferred to the Inactive National Guard, an enlisted member who has a remaining Reserve obligation may be discharged from the ARNG for continuous and willful absence from military duty.  If discharged for this reason, a Soldier may be transferred to the Inactive National Guard at the option of the State Adjutant General or, if discharged from the ARNG of the State only, he may be transferred to the USAR Control Group (Annual Training).  

12.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  
Chapter 6 of this regulation, in effect at the time, governed separation for unsatisfactory performance.  It provides, in pertinent part, that the service of a member separated under this chapter will be characterized as honorable or under honorable conditions as warranted by his or her military record unless separated while in entry level status.  

13.  Army Regulation 135-178, Chapter 7, Section I 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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The contentions made by the applicant have been noted.  However, they are not sufficiently mitigating to warrant the relief requested.  The applicant was notified numerous times regarding the consequence of his failure to attend the MUTAs and he continued to absent himself from scheduled training.  While it is noted that both of his parents were deceased when he enlisted in the TXARNG, the applicant was 20 years old at the time that he committed the offenses that lead to his separation.  


4.  The evidence of record shows that he missed at least 10 MUTAs prior to being notified that he was being recommended for separation for his continued and willful absences.  In accordance with the applicable regulations a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a 1-year period and the honorable characterization is appropriate when the quality of the member’s service has met the standards of acceptable conduct and performance or is otherwise so meritorious that any other characterization would be clearly inappropriate.  The applicant's service failed to meet the criteria to be characterized as fully honorable.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003791



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ABCMR Record of Proceedings (cont)                                         AR20080003791



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