IN THE CASE OF:	  

		BOARD DATE:	  	  15 OCTOBER 2008

		DOCKET NUMBER:  AR20080009936


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, in effect, correction of his records to show that he was discharged in the rank of sergeant/pay grade E-5.

2.  The applicant states that he asked to be discharged [from the Army National Guard] when he was an E-5 due to work commitments and now found out that he was reduced in rank to E-2 without his knowledge.  He additionally states that he is trying to reenlist into active duty.

3.  The applicant provides no 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.  The applicant's military service records show that he enlisted in the Regular Army on 20 May 1986.  He completed basic training and advanced individual training and was awarded the military occupational specialty 11B (Infantryman).

3.  On 27 August 1989, the applicant was honorably separated from active duty and transferred to the Army National Guard (ARNG) with a reserve obligation termination date of 16 April 1994.  His DD Form 214 shows that he served a total of 3 years, 3 months, and 8 days of creditable active military service during this period.  The highest rank he achieved was sergeant/pay grade E-5.

4.  The applicant enlisted in the California Army National Guard (CAARNG) on 28 August 1989.  The applicant's DD Form 4 (Enlistment/Reenlistment Document) shows that he was counseled that upon his enlistment in the ARNG, he would incur the balance of his 8-year military service obligation.  DA Form 3540 (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting, Reenlisting, or Transferring into Troop Program Units of the US Army Reserve), marked Annex A, shows he acknowledged that he would be required to maintain satisfactory participation in the Ready Reserve for the entire period of service stipulated on the enlistment document.  Annex A further shows that he understood that he would be required to attend all scheduled unit training assemblies unless he was excused by proper authority and that if he accrued 9 or more unexcused absences during any continuous 365-day period, he may be declared an unsatisfactory participant.  NGB Form 594-3 (Annex B – DD Form 4 In-service Enlistment (Dual Component) Option) shows that he agreed to be a satisfactory participant as explained in NGB Form 590 for the entire period of his enlistment after his discharge/release from the Regular Army. Annex B also shows that he agreed to keep his point of contact informed of his location and any conditions that may change his eligibility for ARNG status.

5.  CAL ARNG Form 614-10 (Letter of Notification – Unexcused Absence) dated 26 April 1991 notified the applicant that unit attendance records showed he was absent from the scheduled unit training assembly on 12 April 1991.  The letter also informed him that unless the aforementioned absence was excused, he will have accrued 1 unexcused absence within a 1-year period.  The letter further informed him that the unit received approval from the President of the Reduction Board, and a board would be held for reduction by reason of inefficiency (unexcused absence from drill) on 29 May 1991, and advised him of his right to present matters in rebuttal.

6.  Company B, 4th Battalion, 160th Infantry, CAARNG, Letter of Notification – Unexcused Absence notified the applicant that unit attendance records showed he was absent from the scheduled multiple unit training assemblies on 4 and 5 May 1991.  The letter also informed him that unless the aforementioned absences were excused, he will have accrued 5 unexcused absences within a 
1-year period.  Postal Service documents show that the letter was sent by certified mail on 6 May 1991.  Postal Service documents further show the letter was returned unclaimed following delivery attempts on 12 and 22 May 1991.

7.  Company B, 4th Battalion, 160th Infantry, CAARNG, Letter of Notification – Unexcused Absence notified the applicant that unit attendance records showed he was absent from the scheduled multiple unit training assemblies on 7, 8, and 9 June 1991.  The letter also informed him that unless the aforementioned absences were excused, he will have accrued 8 unexcused absences within a 1-year period.  The letter further informed him that the unit received approval from the President of the Reduction Board, that a board would be held for reduction by reason of inefficiency (unexcused absence from drill) on 26 June 1991, and advised him of his right to present matters in rebuttal.  Postal Service documents show that the letter was sent by certified mail on 10 June 1991.  Postal Service documents further show the letter was claimed on 24 June 1991.

8.  CAL ARNG Form 614-10 (Letter of Notification – Unexcused Absence) dated 21 July 1991 notified the applicant that unit attendance records showed he was absent from the scheduled unit training assemblies on 19, 20, and 21 July 1991 for a total of 5 unit training assemblies.  The letter also informed him that unless the aforementioned absences were excused, he will have accrued 12 unexcused absences within a 1-year period.  Postal Service documents show that the letter was sent by certified mail on 23 July 1991.  Postal Service documents further show the letter was claimed on 24 July 1991.

9.  Company B, 4th Battalion, 160th Infantry, CAARNG, Notification Letter dated 4 October 1991 notified the applicant that the commander was initiating action to involuntarily transfer him to the Inactive National Guard/Individual Ready Reserve as appropriate for accrual of 9 or more unexcused absences during a 12-month period.  The letter informed him that his service may be characterized as under honorable conditions upon expiration of his term of service.  Postal Service documents show that the letter was sent by certified mail on 7 October 1991.  Postal Service documents further show the letter was claimed on 11 October 1991.

10.  Company B, 4th Battalion, 160th Infantry, CAARNG, memorandum dated 4 October 1991 recommends involuntary separation of the applicant for accrual of 9 or more unexcused absences during a 12-month period.  This memorandum states that he does not represent a potential mobilization asset because of chronic absence without leave (AWOL).  CAL ARNG Form 601-2 (Soldier Status Summary Request) dated 4 October 1991 shows that the applicant was being processed for separation for chronic AWOL, that he was given every opportunity to rehabilitate, and that he refused to do so.  This form shows that he was AWOL 13 times and that AWOL letter notifications were returned.

11.  Company B, 4th Battalion, 160th Infantry, CAARNG, Orders 8-1 dated 12 November 1991 show that the applicant was reduced in rank to private/pay grade E-2 for inefficiency due to multiple AWOL effective 12 November 1991.

12.  Company B, 4th Battalion, 160th Infantry, CAARNG, memorandum dated 12 November 1991 recommends involuntary separation of the applicant for accrual of 9 or more unexcused absences during a 12-month period.  The memorandum states that he was classified as an unsatisfactory participant.  The memorandum further states that he was unlocatable and did not respond to unit phone calls or certified letters, and that the AWOL abatement team was unsuccessful in contacting him at his last known address.  CAL ARNG Form 
601-3 (Soldier Status Summary Report) dated 12 November 1991 shows that the applicant was being processed for separation for AWOL, that he reported and turned in his gear, and that he signed his letter but is no longer interested in returning to an active status.  The Retention Noncommissioned Officer recommended approval of the request for discharge.

13.  NGB Form 22 (Report of Separation and Record of Service) shows that the applicant was separated under honorable conditions for unsatisfactory participation and transferred to the U.S. Army Reserve Control Group (Annual Training) in the rank of private/pay grade E-2 effective 4 December 1991.  His NGB Form 22 shows that he served a total of 2 years, 3 months, and 7 days of creditable reserve component service during this period.

14.  U.S. Army Reserve Personnel Center Orders D-05-438127 dated 24 May 1994 show that the applicant was honorably discharged from the U.S. Army Reserve in the rank of private/pay grade E-2 effective 24 May 1994 at the expiration of his service obligation under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).

15.  National Guard Regulation 600-200 (Enlisted Personnel Management) provides, in pertinent part, that commanders may reduce Soldiers for inefficiency. Inefficiency is defined not only as technical incompetence, but also as patterns or acts of conduct demonstrating that the Soldier concerned lacks the abilities and qualities required and expected of a Soldier of his or her rank and experience.  Commanders may consider any act of misconduct, to include a record of unexcused absences or unsatisfactory participation, as evidence of inefficiency.  The commander reducing the Soldier will inform the Soldier in writing, delivered in person or dispatched by certified mail, of the action contemplated and reasons. Paragraph 6-44 of National Guard Regulation 600-200 specifies, "Mail refused, unclaimed, not acknowledged, or otherwise undeliverable, will not be used as defense against or as a basis for an appeal of reduction, when notification was correctly addressed to the latest official mail address furnished to the unit by the member."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show that he was discharged in the rank of sergeant/pay grade E-5 was carefully considered and determined to be without merit.

2.  The applicant enlisted in the ARNG on 28 August 1989.  His enlistment documents clearly show that he was counseled that upon his enlistment in the ARNG, he would incur the balance of his 8-year military service obligation, that he would be required to maintain satisfactory participation in the Ready Reserve for the entire period of service, that he would be required to attend all scheduled unit training assemblies unless he was excused by proper authority, and that if he accrued 9 or more unexcused absences during any continuous 365-day period, he may be declared an unsatisfactory participant.  Further, he agreed to keep his point of contact informed of his location and any conditions that may change his eligibility for ARNG status.

3.  The applicant's military service records show that Company B, 4th Battalion, 160th Infantry, CAARNG, notified him of his multiple incidents of unauthorized absences from scheduled unit training assemblies and the possible effects of his unauthorized absences.

4.  National Guard Regulation 600-200, in effect at the time, specifies that commanders may reduce Soldiers for inefficiency for a record of unexcused absences or unsatisfactory participation.  The applicant's military service records show that Company B, 4th Battalion, 160th Infantry, CAARNG, notified him on multiple occasions that a Reduction Board would be held for reduction by reason of inefficiency and advised him of his right to present matters in rebuttal.  There is no evidence that he responded to the notifications.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the reduction and separation process.  Therefore, he is not entitled to relief in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  __X ____  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.



      ___________X______________
                 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)                                         AR20080009936



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ABCMR Record of Proceedings (cont)                                         AR20080009936



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