IN THE CASE OF:	

		BOARD DATE:	  29 January 2009

		DOCKET NUMBER:  AR20080018159 


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 his U.S. Army Reserve discharge be upgraded to honorable.

2.  The applicant states he was subjected to racial slurs by one of his platoon sergeants.  He states that on one occasion he got upset and said something back to the sergeant and then got into an altercation with another Soldier of the same rank as himself.  He states he was then involuntarily transferred to a unit 70 miles away from his home.  He states that after he missed some training assemblies he was sent a letter from his company commander indicating he would be placed in a U.S. Army Reserve Control Group and that his discharge on 14 May 1984 would not be less than honorable.

3.  The applicant provides a self-authored letter, a DD Form 214 (Report of Separation from Active Duty), and a discharge order 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 records show he enlisted in the U.S. Army Reserve on 
28 March 1978.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of carpentry and masonry specialist.  The highest rank he attained was private/pay grade E-2.

3.  The applicant was transferred from Company A, 972nd Engineer Battalion at Camp Atterbury, Indiana to Headquarters and Headquarters Company, 972nd Engineer Battalion at Fort Benjamin Harrison, Indiana; which research shows was approximately 33 miles away from his stated home town at the time.

4.  The applicant's records show that on 10 August 1980, the applicant was provided a letter through personal contact, of notice of unsatisfactory participation under Army Regulation 135-91 and of separation action being taken against him under Army Regulation 135-178.  The letter confirmed that the applicant was charged with 10 unexcused absences within a 12-month period and that the applicant did not submit a request to be excused from any of those absences.  The letter indicated that the applicant had been declared an unsatisfactory participant and action was being initiated to separate him from the Army Reserve.  The commander advised the applicant of his right to have his case considered by a board of officers; to appear in person before a board of officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge; and request his case be presented before a board of officers.

5.  The letter also indicated that while his service may be characterized as under other than honorable conditions, the final decision on whether the applicant would be separated and the characterization of service he would receive rested with the separation authority.  The letter further indicated that if the applicant was transferred to the Individual Ready Reserve, his characterization of service may be upgraded if he rejoined the same or another Army National Guard or Army Reserve unit and participated satisfactorily for a period of 12 months; or volunteered for and satisfactorily completed a tour of at least 45 days of active duty for training.  The applicant acknowledged receipt of the original letter containing the information in paragraphs 4 and 5 above, by his signature. 

6.  The applicant's commander advised him that action was suspended for 
45 days to allow for the applicant to exercise his rights set forth in the letter.
7.  On 28 October 1980, the applicant's separation case was forwarded for administrative review prior to board action.  On 30 December 1980, the applicant was reassigned from a troop program unit to the U.S. Army Reserve Control Group (Annual Training) due to unsatisfactory participation.  His service was characterized as under other than honorable conditions. 

8.  On 14 May 1984, the applicant was discharged from the U.S. Army Ready Reserve Control Group (Annual Training).  He completed 6 years, 1 month, and 17 days of service in the U.S. Army Reserve that was characterized as under other than honorable conditions.  

9.  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.  The 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.

10.  Army Regulation 135-178, in effect at the time, sets forth the basic authority for the separation of enlisted Reserve Component personnel.  This regulation, in pertinent part, establishes policy and prescribes procedures for separating members for misconduct (unsatisfactory participation) in the Army Reserve.  A discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) defines reasonable commuting distance as the longest distance a U.S. Army Reserve Soldier can be expected to travel involuntarily between his or her residence and a site where inactive duty training will be conducted.  This is a distance within a 50-mile radius of the inactive duty training site.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not submitted any evidence to show that he was the subject of racial slurs or that he was transferred between units because of his ethnicity.  

2.  Concerning the applicant's statement that the new unit was 70 miles away; it appears that it was approximately 33 miles away, which is deemed to be within reasonable commuting distance.  As such, his contention that he missed drills because he was transferred to a unit which was too far to commute to is not accepted.

3.  Contrary to the applicant's contention, he was notified that his service could be characterized as under other than honorable conditions, and the orders transferring him to the Individual Ready Reserve specified that his service was tentatively characterized as under other than honorable conditions.

4.  As such, the applicant was properly charged with unexcused absences, he was properly declared an unsatisfactory participant, and his service was properly characterized as under other than honorable conditions and there is no reason to change it.

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)                                         AR20080018159



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ABCMR Record of Proceedings (cont)                                         AR20080018159



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