IN THE CASE OF:
BOARD DATE: April 14, 2009
DOCKET NUMBER: AR20080018093
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 restoration of his rank/grade to specialist (SPC)/E-4 and adjustment of his date of rank (DOR) accordingly, and removal of time lost from his record.
2. The applicant states he was conditionally released from the Florida (FL) Army National Guard (ARNG) on 29 July 1999. He was reported as absent without leave (AWOL) during several drills [training assemblies] and was subsequently erroneously dishonorably discharged from the FLARNG on 12 November 1999 and on 4 January 2000. He adds that he was also reduced from SPC/E-4 to private first class (PFC)/E-3 on 11 November 1999, from PFC/E-3 to private (PV2)/E-2 on 4 January 2000, and from PV2/E-2 to private (PVT)/E-1 on 8 February 2000. He also adds that he would like to return to active duty in his previous rank/grade.
3. The applicant provides a copy of a DA Form 4187 (Personnel Action), dated 23 November 1996; a copy various letters of instruction for unexcused absence, dated on miscellaneous dates in 1999 and 2000; copies of various notifications of proposed reduction and reduction orders issued by the FLARNG; and a copy of a request for discharge memorandum, dated 4 January 2000, in support of his 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 applicants 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 applicants 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 records show he enlisted in the Regular Army for a period of 3 years on 17 March 1987. He subsequently completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist). However, he was released from active duty under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) in the rank/grade of PV2/E-2 by reason of unsatisfactory performance and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 24 November 1989.
3. The applicant's records further show he enlisted in the FLARNG on 30 September 1993. He was assigned to Headquarters and Headquarters Battery, 1st Battalion, 265th Air Defense Artillery, Daytona, FL. He was honorably discharged in the rank/grade of PFC/E-3 on 9 May 1995.
4. The applicant's records further show he enlisted in the FLARNG in the rank/grade of PFC/E-3 on 23 August 1996 for a period of 1 year. He was subsequently assigned to Headquarters and Headquarters Company, 53rd Support Battalion, St. Petersburg, FL, and was promoted to SPC/E-4 on 23 November 1996.
5. On 21 June 1997, the applicant executed a 3-year extension of his 1-year enlistment in the FLARNG.
6. On 29 July 1999, the applicant submitted a DD Form 368 (Request for Conditional Release) for the purpose of entering another component of military service. Item 3 (Acknowledgement of Service Member) shows the entry "If I am a member of the National Guard or Reserve, I understand that I must attend all scheduled drills until such time I am enlisted or appointed into another Service. I also understand that I am to keep my current commander informed of any change in my status." He authenticated this form by placing his signature in the appropriate block. His request was subsequently approved on 10 August 1999.
7. On 21 August 1999, the applicant's immediate commander dispatched a letter of instruction to the applicant informing him that he was absent from scheduled multiple unit training assemblies (MUTA) on 7 August 1999 and 8 August 1999. He was notified that unless his absence was excused, he had accrued 4 unexcused absences within a 1-year period. He was also provided with an endorsement to acknowledge receipt of this letter and submit a statement of justification/excuse for the absence within 15 days. However, there is no indication that the applicant responded to this letter.
8. On 17 September 1999, the applicant's immediate commander again dispatched a letter of instruction to the applicant informing him that he was absent from the scheduled unit training assembly (UTA) on 12 September 1999. He was notified that unless his absence was excused, he had accrued 5 unexcused absences within a 1-year period. He was also provided with an endorsement to acknowledge receipt of this letter and submit a statement of justification/excuse for the absence within 15 days. However, there is no indication that the applicant responded to this letter.
9. On 28 October 1999, the applicant's immediate commander again dispatched a letter of instruction to the applicant informing him that he was absent from scheduled MUTA on 23 October 1999 and 24 October 1999. He was notified that unless his absence was excused, he had accrued 6 unexcused absences within a 1-year period. He was also provided with an endorsement to acknowledge receipt of this letter and submit a statement of justification/excuse for the absence within 15 days. However, there is no indication that the applicant responded to this letter.
10. On 28 October 1999, by certified mail, the applicant's immediate commander dispatched a notification of proposed reduction memorandum to the applicant informing him that in accordance with paragraph 11-62b(1) of National Guard Regulation 600-200, he was being recommended for reduction to PFC/E-3 by reason of being AWOL during the periods 23 October 1999 and 24 October 1999. An endorsement was attached to the notification memorandum advising the applicant to acknowledge the notification and/or submit a statement on his own behalf; however, there is no indication that the applicant acknowledged receipt and/or submitted a statement within 15 days of receipt.
11. On 11 November 1999, Headquarters and Headquarters Company (-), 53rd Support Battalion, St. Petersburg, FL, published Orders 11-2 reducing the applicant from SPC/E-4 to PFC/E-3 effective 11 November 1999.
12. On 12 November 1999, the applicant's immediate commander again dispatched a letter of instruction to the applicant informing him that he was absent from scheduled MUTA on 6 November 1999 and 7 November 1999. He was notified that unless his absence was excused, he had accrued 10 unexcused absences within a 1-year period. He was also provided with an endorsement to acknowledge receipt of this letter and submit a statement of justification/excuse for the absence within 15 days. However, there is no indication that the applicant responded to this letter.
13. On 12 November 1999, by certified mail, the applicant's immediate commander dispatched a second notification of proposed reduction memorandum to the applicant informing him that in accordance with paragraph 11-62b(1) of National Guard Regulation 600-200, he was being recommended for reduction to PV2/E-2 by reason of being AWOL during the periods 6 November 1999 and 7 November 1999. An endorsement was again attached to the notification memorandum advising him to acknowledge the notification and/or submit a statement on his own behalf; however, there is no indication that the applicant acknowledged receipt and/or submitted a statement within 15 days of receipt.
14. On 9 December 1999, the applicant's immediate commander again dispatched a letter of instruction to the applicant informing him that he was absent from scheduled MUTA on 4 December 1999 and 5 December 1999. He was notified that unless his absence was excused, he had accrued 14 unexcused absences within a one year period. He was also provided with an endorsement to acknowledge receipt of this letter and submit a statement of justification/excuse for the absence within 15 days. However, there is no indication that the applicant responded to this letter.
15. On 9 December 1999, by certified mail, the applicant's immediate commander dispatched a second notification of proposed reduction memorandum to the applicant informing him that in accordance with paragraph 11-62b(1) of National Guard Regulation 600-200, he was being recommended for reduction to PV1/E-1 by reason of being AWOL during the periods 4 December 1999 and 5 December 1999. An endorsement was again attached to the notification memorandum advising him to acknowledge the notification and/or submit a statement on his own behalf; however, there is no indication that the applicant acknowledged receipt and/or submitted a statement within 15 days of receipt.
16. On 4 January 2000, Headquarters and Headquarters Company (-), 53rd Support Battalion, St. Petersburg, FL, published Orders 1-3 reducing the applicant from PFC/E-3 to PV2/E-2 effective 4 January 2000.
17. On 9 January 2000, the applicant's immediate commander initiated a request for discharge against the applicant by reason of unsatisfactory participation. The immediate commander cited the applicant's multiple instances of unexcused absence and failure to respond to various notification letters.
18. On 8 February 2000, Headquarters and Headquarters Company (-), 53rd Support Battalion, St. Petersburg, FL, published Orders 2-1 reducing the applicant from PV2/E-2 to PVT/E-1 effective 8 February 2000.
19. On 7 March 2000, the applicant's battalion commander recommended approval of the discharge and on 13 March 2000 the division commander recommended approval of the applicant's discharge due to unsatisfactory participation.
20. On 5 April 2000, Office of the Adjutant General, FLARNG, published Orders P096-032 directing the applicant's general discharge from the ARNG and transfer to the USAR Control Group (Reinforcement) in the rank/grade of PVT/
E-1 effective 1 April 2000.
21. On 1 July 2008, the applicant enlisted in the Regular Army for a period of 3 years in the rank/grade of PVT/E-1.
22. An advisory opinion was obtained on 5 February 2009 in the processing of this case. The Chief, Personnel Division, National Guard Bureau, recommended disapproval of the applicant's request to restore his original rank to SPC/E-4. That office added that the FLARNG attempted to contact the applicant on several occasions and that at least one of the certified letters sent to the applicant had been signed for, indicating that he should have been aware that the FLARNG was trying to contact him. That office also added that additional research by the FLARNG and the National Guard Bureau were unsuccessful in locating an enlistment/reenlistment document to show he joined the Army within 90 days of the date the conditional release form was signed. Contact was made with the applicant; however, he was unable to provide a copy of such document.
23. Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons. Chapter 7 of the regulation in effect at the time governed separation for misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. An honorable characterization of service is not authorized for a member who has completed entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate.
24. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components. This regulation states that a member is an unsatisfactory participant when he or she accrues 9 or more unexcused absences from scheduled training assemblies during a 1-year period.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his rank/grade of SPC/E-4 should be restored, his DOR should be adjusted accordingly, and the lost time should be removed from his records.
2. The evidence of record shows that the applicant requested a conditional release from the FLARNG on 29 July 1999 for the purpose of entering another component of the Army. His conditional release stipulated that he would attend scheduled training and keep his commander informed. However, there is no evidence in the applicant's records and the applicant did not provide substantiating evidence that shows he enlisted in any component of the Army until 1 July 2008.
3. The applicant was required to attend all scheduled unit training assemblies and annual training periods as stipulated in his enlistment contract and his request for conditional release. He chose not to do so. According to the notification letters, and as the applicant was aware, he was advised that if he accumulated 9 unexcused absences within 1 year, he could be declared an unsatisfactory participant and he could be transferred to another component for the balance of his obligation.
4. The evidence of record shows that the applicant was absent from scheduled UTA or MUTA on multiple occasions. In each instance, he was notified in writing. Subsequent to his history of unexcused absences, his immediate commander initiated reduction action and ultimately requested his discharge from the ARNG for unsatisfactory participation. The separation authority approved the request and he was separated on 1 April 2000 in the rank/grade of PVT/E-1 and transferred to the USAR Control Group in accordance with regulatory guidance. The record of unsatisfactory participation is correctly filed in his record. He did not provide a compelling reason to remove such records.
5. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement. Therefore, he is not entitled to an honorable discharge.
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) AR20080018093
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