IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080012756 


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, reconsideration of his earlier petition to upgrade his general, under honorable conditions discharges (GD) of 1 March 1990 and 5 May 1992 from the Oklahoma Army National Guard (OKARNG), to fully honorable discharges (HD).  

2.  The applicant states, in effect, that his lack of transportation caused him to miss meetings with the OKARNG, and that he was very young and trying to make ends meet during a time when his family was going through rough times.

3.  The applicant provides a self-authored statement in support of his reconsideration request.  

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004581 on 8 July 2008.

3.  During the original deliberations in this case the ABCMR found that the applicant was appropriately notified of his nine or more absences from drill prior to both separations.  Accordingly the ABCMR determined after considering all of the facts in his case that the reasons for both of the applicant’s separations were appropriate.

4.  The applicant now provides a self-authored statement as new argument, in which he claims that during the time he was absent from OKARNG meetings, he did not have transportation of any kind.  He further states that the main reason he could not attend meetings was because his family was going through rough times and he was very young and trying to make ends meet.  

5.  The applicant’s record shows he initially enlisted in the OKARNG on 7 July 1987, for a period of eight years.  He was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist).  

6.  The applicant's record contains three letters, dated 10 September,
5 November, and 4 December 1989, Subject: Letters of Instructions-Unexcused Absence.  These letters provided the applicant notification of his twelve unauthorized absences.  The record also contains Postal Service (PS) Forms 3800 (Receipt for Certified Mail) and PS Form 3811 (Domestic Return Receipt) with the applicant’s signature confirming he received these letters.

7.  The applicant's record also contains a Commander’s Request for Discharge (OKARNG Form 17-5), dated 1 March 1990, which shows the applicant's commander requested the applicant be discharged by reason of unsatisfactory participation. 

8.  A National Guard Bureau Report of Separation and Record of Service (NGB Form 22) on file shows the applicant was discharged from the OKARNG on 1 March 1990 with a GD and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training), after completing 1 year, 7 months, and 24 days of military service.

9.  On 26 March 1991, the applicant again enlisted in the OKARNG for a period of 5 years.  His record contains two letters, dated 18 November 1991 and
10 February 1992, Subject: Letters of Instructions-Unexcused Absence.
These letters notified the applicant of eight unauthorized absences and included PS Forms 3811 that contain signatures confirming the letters were received.  

10.  On 13 February 1992, nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice was initiated against the applicant for being absent without leave (AWOL) from his unit on 9 February 1992.  On 
8 March 1992, the applicant was summoned to appear before his commander to answer to his AWOL charge; however, he failed to appear and as a result separation action was initiated.

11.  An OKARNG Form 17-5 shows that the applicant’s commander requested the applicant be discharged on 1 May 1992.

12.  On 1 May 1992, the applicant was discharged from the OKARNG, after completing 1 year, 1 month, and 10 days of military service this period.  The 
NGB Form 22 issued to the applicant at that time confirms he was discharged 
by reason of unsatisfactory participation and that he received a GD.

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

14.  Army Regulation 135-178 sets the policies, standards, and for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  Chapter 7, in effect at the time, provided for the separation of USAR members for unsatisfactory participation.  An UOTHC discharge was normally considered appropriate for members separated under this provision of the regulation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the GDs he received on 1 March 1990 and 5 May 1992 should be upgraded to an HD because he had no means of transportation to report to the drills and because his family was experiencing problems at the time was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 


2.  The evidence of record confirms the applicant was properly notified in writing of his unexcused absences, and that his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  The applicant's extensive history of unexcused absences during his two separate enlistments clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, absent any evidence of error or injustice in his separation processing, there is an insufficient evidentiary basis to support an upgrade of his GDs from the OKARNG, or amendment of the original Board’s decision in this case.  

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 the aforementioned 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 to amend the decision of the ABCMR set forth in Docket Number AR20080004581 dated 8 July 2008.



      ________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)                                         AR20080012756



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ABCMR Record of Proceedings (cont)                                         AR20080012756



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