IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080008301 


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 correction of his records to show he was separated from the Ohio Army National Guard (OHARNG) in the rank/grade of sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4. 

2.  The applicant states that he was unable to complete his Reserve duty because of an out-of-state job transfer and was unfairly reduced in grade.  

3.  The applicant did not provide any additional documentary evidence 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 U.S. Army Reserve (USAR) for a period of 6 years on 31 July 1975 under the Delayed Entry Program (DEP) in the rank/grade of private (PVT)/E-1.  He subsequently enlisted in the Regular Army for a period of 4 years on 18 November 1975, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 75C (Personnel Management Specialist).

3.  The applicant’s records further show that he was promoted to SP4/E-4 on 25 February 1977 and specialist five (SP5)/E-5 on 28 May 1978.  He was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 13 November 1979.

4.  After a short break-in-service, the applicant enlisted in the OHARNG for a period of 6 years, in the rank/grade of SGT/E-5, on 5 January 1980.  He was subsequently awarded MOS 71D (Legal Specialist) and was assigned to the 112th Combat Engineer Battalion, Brook Park, OH.  

5.  The applicant's records show that he had an extensive record of unexcused absences 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 absences 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. 

6.  On 8 August 1984, the applicant pled guilty at a Summary Court-Martial to one specification of being absent without leave (AWOL) during the period on or about 4 May 1984 through on or about 8 August 1984.  The Court-Martial sentenced him to reduction to SP4/E-4 and confinement for 2 days.  The sentence was adjudged on 8 August 1984.

7.  On 6 October 1984, the convening authority approved the sentence of reduction to SP4/E-4 and ordered it executed.  He further disapproved the sentence of confinement for 2 days and ordered it vacated.  

8.  On 24 October 1984, Headquarters, 112th Combat Engineer Battalion, Brook Park, OH, published Orders 39-1, reducing the applicant to SP4/E-4, effective 6 October 1984.



9.  On 1 January 1985, the applicant was honorably discharged from the OHARNG and transferred to the USAR Control Group (Reinforcement).  Items 5a (Rank) and 5b (Pay Grade) of the applicant’s National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the entries SP4 and E-4, respectively.

10.  On 31 December 1985, U.S. Army Reserve Personnel Center, St. Louis, Missouri, published Orders D-12-078799, honorably discharging the applicant from the USAR Control Group (Reinforcement).

11.  There are no Orders in the applicant’s records that show he was promoted back to SGT/E-5 prior to his discharge from the OHARNG and/or the USAR.  

12.  National Guard Regulation (NGR) 600-200 establishes standards, policies, and procedures for the management of Army National Guard enlisted Soldiers.  Table 8-2 of this regulation, in effect at the time, established the standardized policy for preparing and distributing the NGB Form 22.  The purpose of the separation document is to provide the individual with documentary evidence of their military service in the ARNG.  Item 5a shows the 3-digit abbreviation of the Soldier's rank, Item 5b shows the pay grade appropriate for the rank shown in Item 5a, and Item 6 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's records, and the applicant did not provide any evidence, that shows he had an out-of-State job transfer while serving in the Army National Guard.  Furthermore, there is no evidence in the available record and the applicant did not provide substantiating evidence that shows he addressed this transfer with his chain of command or requested exemption from unit training due to the alleged job transfer.

2.  The applicant was required to attend all scheduled unit training assemblies and annual training periods.  He chose not to.  According to the notification letters and as the applicant was aware, he was advised that if he accumulated nine unexcused absences within one year, he could be declared an unsatisfactory participant.

3.  The 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.  Accordingly, court-martial charges were preferred against him for several specifications.  He subsequently pled guilty at a Summary Court-Martial to one specification of being AWOL.  The Court-Martial sentenced him to reduction in grade from SGT/E-5 to SP4/E-4.
4.  There is no evidence in the available records and the applicant did not submit any evidence that shows he was promoted again to SGT/E-5 from the time he was reduced to SP4/E-4 to the time he was discharged from the OHARNG.  Therefore, his SP4/E-4 is correctly shown on his NGB Form 22.

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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.  

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)                                         AR20080008301



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ABCMR Record of Proceedings (cont)                                         AR20080008301



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