IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080012309 


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, that his under other than honorable conditions discharge be upgraded to honorable and his reentry (RE) code changed to allow him to reenter the Indiana Army National Guard (INARNG) .

2.  The applicant states that he wishes to have his discharge upgraded and his RE code changed so he can reenter the INARNG. He also states that he served in the INARNG from August 1978 to June 1980 in good standing with Troop A, 1st Squadron, 238th Cavalry Regiment in Muncie, IN until he was transferred to the 38th Military Police (MP) Company in Indianapolis, IN.  He further states, in effect, that he was then transferred to Company B, 3rd Battalion, 423rd Regiment, 3rd Brigade (Infantry), 70th Division (Training), a United States Army Reserve (USAR) unit, and that this was the cause of his dilemma with his civilian employer.  He continued by stating that at that time he was unaware of any help he could receive with drilling with a unit, and that he was unable to attend drills due to his civilian employer at that time.  He also states that through no fault of his own, he missed too many drills and was discharged due to unsatisfactory participation.  Additionally, he states that he had small children at that time and could not afford to lose his civilian job, and that his civilian employer told him that he would be fired if he continued to drill and miss work.  He reiterates that not much help was available for Reserve Component members at that time.  He concluded by stating that he wants to fulfill his dreams while he can still enlist.

3.  The applicant provides an undated self-authored letter in support of this 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 records show that he enlisted in INARNG on 23 May 1978.  He was ordered to active duty for training (ADT) on 24 August 1978, completed one-station unit training, and was awarded military occupational specialty 11B (Infantryman).  On 17 November 1978 he was released from ADT and was assigned to Troop A, 1st Squadron, 238th Cavalry Regiment in Muncie, Indiana.  On 19 September 1980, he was reassigned to the 38th MP Company in Indianapolis, IN.

3.  Military Department of Indiana, Adjutant General's Office, Indianapolis, Indiana, Orders 108-8, dated 5 June 1981, honorably discharged the applicant from the INARNG, effective 24 May 1981, and assigned him to Company B, 3rd Battalion, 423rd Regiment, 3rd Brigade (Infantry), 70th Division (Training) of the USAR.

4.  The complete facts and circumstances surrounding the applicant's discharge, i.e., his complete separation packet, is not available for review.  However, the applicant's military records contained a letter, dated 27 October 1981, which shows that he was notified that he was declared an unsatisfactory participant after being charged with 9 unexcused absences within a 1-year period, and that his commanding officer was initiating action to separate him from the USAR.  The applicant was also informed that if he was separated, his service may be characterized as under other than honorable conditions.  The applicant acknowledged receipt of this notification on 29 October 1981.

5.  On 17 December 1981, the applicant's commanding officer recommended that he be considered for separation for misconduct due to unsatisfactory participation.  In a statement on the same date, the applicant's commanding officer stated that he called the applicant on 17 October 1991 to find out why he 
did not attend drill on that morning and to inform him that he had accumulated his ninth unexcused absence within a year.  He also informed the applicant that he would be coming over to see the applicant with his final Letter of Instruction – Unexcused Absence, but that the applicant stated that he no longer desired to attend drills in an active status and that he would be very happy to come over and pick up his letter and sign for it.  The applicant's commanding officer also stated, in pertinent part, that he could not find out why the applicant quit coming to drills other than he was tired of coming.

6.  Headquarters, 70th Division (Training), Livonia, MI, Orders 24-5, dated 7 April 1982, reduced the applicant from the rank and pay grade of specialist four/E-4 to private/E-2.

7.  The same headquarters also issued Orders 24-6, dated 7 April 1982, which reassigned the applicant to the USAR Control Group (Annual Training) effective 7 April 1982.  These orders also indicated that the applicant's service was characterized as under other than honorable conditions.

8.  USAR Personnel Center, St. Louis, MO, Orders C-08-027509, dated
16 August 1984, reduced the applicant from the rank and pay grade of private/
E-2 to private/E-1 effective that same date.

9.  The same headquarters, Orders D-08-907875, dated 25 August 1984, discharged the applicant from the USAR Control Group (Annual Training) effective that date, and shows that he was issued an under other than honorable conditions discharge.

10.  There is no indication in the applicant's military records that he was ever assigned an RE code.

11.  There is also no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) provides, in pertinent part, that Soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any 1-year period a total of nine or more unexcused absences.  For counting unexcused absences, the 1-year period will begin on the date of the absence.  It will end 1 year later.  Beginning dates will be set for each succeeding unexcused absence.  When longer than 1 year elapses from the date of an absence, it no longer will be counted; the new 1-year period will begin on the date of the later absence, if any.
13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to honorable and his RE code should be changed so he can reenter the INARNG.

2.  The applicant's contention that he was unaware of any help he could receive with his situation was noted.  However, as evidenced by his commander's statement on 17 December 1981, it is apparent that the applicant never requested any assistance from his chain of command in regards to any difficulties he was having balancing his civilian job with his military duties.  The commander clearly stated that he could not find out why the applicant quit coming to drills, even though he was clearly attempting to communicate with the applicant during a telephone conversation on 17 October 1991 to find out why he did not attend drill on that morning.

3.  Although the complete facts and circumstances surrounding the applicant's separation processing are unavailable, it is clear that he was discharged under other than honorable conditions due to being declared an unsatisfactory participant.  As the applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  As there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that he was ever assigned an 
RE code, there is insufficient basis for granting relief to this portion of the applicant's request.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.  In view of the foregoing, there is no basis for granting relief to the applicant 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.



      ________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)                                         AR20080012309



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ABCMR Record of Proceedings (cont)                                         AR20080012309



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