IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080014260 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that after being honorably released from active duty and being returned to his United States Army Reserve (USAR) unit in Glenview, Illinois, he attended drills for about 2 years before requesting of his first sergeant to be transferred to a unit in Chicago because he did not have transportation to get to his unit.  He goes on to state that he was not given a transfer and was subsequently told that he would be given a general discharge that would be upgraded to an honorable discharge within 6 months.  However, he was given a discharge under other than honorable conditions.  He continues by stating that he did not abandon the Army Reserve, it abandoned him for reasons beyond his control.  He also states that he was injured and disfigured while attending training and he will not stop until the injustice is corrected. 

3.  The applicant provides no additional documents with 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 was born on 4 April 1960 and enlisted in the USAR in Chicago, Illinois on 14 December 1978, for a period of 6 years, training as a petroleum supply specialist and assignment to the 185th Transportation Company, Glenview Naval Air Station, Glenview, Illinois.

3.  At the time of his enlistment he acknowledged by his signature on his enlistment contract that he understood it was his responsibility to keep his commander advised of his current mailing address at which he would receive official correspondence and that he was responsible for replying to and complying with all official correspondence he may receive.  He also acknowledged that if he changed residences to a location too far to permit continued participation with his unit, he would be authorized a period of no more than 60 days of unexcused absence from training and that he must within those 60 days, locate and join another Reserve unit.  He further acknowledged that he understood that if he failed to participate satisfactorily, he would be declared an unsatisfactory participant and would be separated from the service with an appropriate discharge, which may include a less than honorable discharge.  The applicant was provided a copy of his contract at the time. 

4.  He was ordered to initial active duty for training (IADT) on 20 February 1979 and underwent his basic training at Fort Jackson, South Carolina and his advanced individual training (AIT) at Fort Lee, Virginia before being honorably released from IADT on 23 June 1979.  He was transferred back to his USAR unit in Glenview, Illinois.  He was advanced to the pay grade of E-3 on 12 August 1979.  It appears that the applicant stopped going to drills all together in August 1981.

5.  On 12 April 1982, the applicant's commander initiated action to separate the applicant for misconduct due to unsatisfactory participation.  All of the Certified Mail receipts were signed by either the applicant or his mother.  However, there is no evidence in the available records to show that he ever responded to any of the notices.

6.  On 30 October 1982, after numerous notices were dispatched to the applicant by Certified Mail notifying him that he had multiple unexcused absences, he was relieved from assignment to his unit in Glenview, Illinois, due to unsatisfactory participation and was transferred to the USAR Control Group (Annual Training).
7.  On 25 March 1987, he was discharged from the USAR under other than honorable conditions, under the provisions of Army Regulation 135-178, due to unsatisfactory participation.

8.  A review of the applicant's official records fails to show any evidence to indicate that the applicant attempted to transfer to another unit or that he made an attempt to participate satisfactorily as a member of the USAR.

9.  A review of the applicant's separation physical examination conducted at Fort Lee, Virginia at the time he was released from IADT shows no indication of any injury or disfiguration during or after his training was completed.  The applicant indicated that he was in good health and was taking no medications.

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

11.  Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted members of the National Guard and the USAR.  The regulation in effect at the time provides in pertinent part, that a member transferred to the Individual Ready Reserve for unsatisfactory participation (Prior to 1 December 1982) with a tentative characterization of service of less that honorable will normally be discharged at the end of their statutory service obligation with that characterization. 

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  It appears that every reasonable effort was made to contact the applicant prior to discharge as evidence by the signed Certified Mail receipts.  However, his failure to actively participate in the USAR program no longer made him a viable asset to the program and resulted in his discharge from that program.

3.  The applicant's contention that he attempted to join another unit closer to home has been noted; however, he has failed to show through the evidence of his application and the evidence of record that such was the case or that he was unjustly denied a transfer.  He simply did not fulfill the conditions of his contractual obligations at the time.

4.  Accordingly, it appears that the applicant's administrative discharge was accomplished in accordance with the applicable laws and regulations in effect at the time with no indication of any violations of any of the applicant's rights.  Therefore, there appears to be no basis to grant the applicant's request.

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)                                         AR20080014260





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ABCMR Record of Proceedings (cont)                                         AR20080014260



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