IN THE CASE OF:	  

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080012325 


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 rank be reinstated to pay grade E-5 and that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, that after suffering an injustice, he left the Armory and never returned.  As a result, he was reduced to pay grade E-3 and was discharged from the North Carolina Army National Guard (NCARNG) with a GD. 

3.  The applicant provides self-authored statements, dated in July and November 2008; his active duty separation document (DD Form 214); and his NCARNG separation document (NGB Form 22) 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 record shows that he served on active duty in the Regular Army (RA) from 1 July 1980 through 15 September 1992, at which time he was honorably discharged, in the rank and pay grade of sergeant (SGT)/E-5.  The
DD Form 214 he was issued at the time shows he was discharged by reason of convenience of the Government, under the provisions of the Fiscal Year 1992 Enlisted Voluntary Early Release Program.  He enlisted in the United States Army Reserve (USAR) Control Group (Reinforcement) in conjunction with this active duty discharge.

3.  On 24 November 1992, the applicant was released from the USAR for the purpose of enlisting in the NCARNG.  He subsequently enlisted in the NCARNG, in the rank and pay grade of SGT/E-5, for a period of 6 years.

4.  On 27 April 1996, while the applicant was serving as a member of Headquarters Battery, 5th Battalion, 113th Field Artillery of the NCARNG, his unit commander prepared a memorandum for the applicant clarifying what they discussed in a phone conversation.  The unit commander stated that he was aware the applicant had submitted a request for a hardship discharge and he was waiting for the request to arrive for review.  He further stated that the applicant had to understand that this packet would have to go through channels to State headquarters for final approval or disapproval.  The unit commander also indicated that the applicant had to be present at all scheduled drills during the review process.  The unit commander further informed the applicant he had been excused from attending annual training due to his hardship discharge situation, and he provided the applicant a schedule of all weekend drills for the remainder of the year.  The unit commander also indicated that he was still willing to discuss other solutions to the applicant's situation and requested the applicant please consider it thoroughly.  There is no documentation on file in the record to show the applicant submitted a hardship discharge packet in response to this discussion with his unit commander or that he pursued some other resolution of his problems through his chain of command. 

5.  On 24 March, 9 June, 22 July, 20 August, and 23 September 1996, the applicant's unit commander informed him by memorandum of his Unexcused Absences during the periods in question, which totaled 24 unexcused absences. The applicant signed the Domestic Return Receipts (PS Forms 3811) provided with each of the memoranda issued confirming he received the notifications.  There are no documents on file that indicate the applicant replied to any of the unexcused memoranda he was provided.  
6.  On 23 July 1996, Headquarters, 5th Battalion, 113th Field Artillery, NCARNG Orders 13-02 were published directing the applicant's reduction from SGT/E-5 to specialist (SPC)/E-4.

7.  On 20 August 1996, Headquarters, 5th Battalion, 113th Field Artillery, NCARNG Orders 7-1 were published directing the applicant's reduction from SPC/E-4 to private first class (PFC)/E-3.

8.  On 30 August 1996, the applicant's unit commander requested the applicant be separated from the NCARNG under the provisions of Army Regulation
131-91, as an unsatisfactory participant, and recommended the applicant receive a GD.

9.  On 30 November 1996, the separation authority approved the applicant's discharge under the provisions of Paragraph 8-27g, National Guard Regulation 600-200 (Enlisted Personnel Management), and Chapter 4, Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), by reason of unsatisfactory participation, and directed the applicant receive a GD.  The NGB Form 22 issued to the applicant shows he held the rank and pay grade of PFC/E-3 on the date of his discharge, and that he was transferred to the USAR Control Group to complete his remaining military service obligation.

10.  Army Regulation 135-91 defines ARNG and USAR service obligations.  It prescribes policies and procedures governing the various types of service obligations and participation requirements.  Chapter 4 contains guidance on absences, to include unexcused absences related to unsatisfactory participation.

11.  National Guard Regulation 600-200 provides the policies for the management of enlisted Soldiers of the ARNG.  Paragraph 6-43a of the version of the regulation in effect at the time provided the authority to reduce members for inefficiency, which was defined as not only technical incompetence, but also as patterns or acts of conduct demonstrating that the Soldier lacked the abilities and qualities required and expected of a Soldier of his or her rank and experience.  Commanders were allowed to considered acts of misconduct, which included a record of unexcused absences as evidence of inefficiency.  

12.   Paragraph 8-27g of the version of the ARNG enlisted management regulation in effect at the time of the applicant's discharge provided for the discharge of members from the ARNG based on unsatisfactory participation (unexcused absences).  


13.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the United States Army Reserve.  Paragraph 2-9a, provides that an honorable characterization is appropriate when the quality of the Soldier'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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his rank should be reinstated to SGT/E-5 and that his GD should be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, acts of misconduct, which included unexcused absences, could be considered acts of inefficiency by commanders and used as a basis for reduction.  The evidence of record confirms the applicant had accrued 
4 unexcused absences and had failed to respond to the commander's 27 April 1996 counseling regarding processing of a hardship discharge request prior to being reduced from SGT/E-5 to SPC/E-4 for inefficiency on 23 July 1996, and that he had accrued at least 8 unexcused absences prior to being reduced from SPC/E-4 to PFC/E-3 on 20 August 1996.  As a result, absent any evidence that the applicant made any attempts to resolve his hardship problems through his chain of command, there appears to be no error or injustice related to these reductions.  

3.  The evidence of record also confirms that the applicant's separation processing for unsatisfactory participation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. As a result, the GD he received appears to accurately reflect his overall performance of duty in the ARNG, and there is an insufficient evidentiary basis to support an upgrade of his discharge to an HD.  

4.  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.



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)                                         AR20080012325



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012325



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1