IN THE CASE OF:	  

		BOARD DATE:	       16 APRIL 2009

		DOCKET NUMBER:  AR20080018793 


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 NGB Form 22 (Report of Separation and Record of Service) be corrected to show that he received an honorable discharge instead of a general discharge and the authority and reason for his discharge be corrected.  Additionally, he requests that the rank of sergeant (SGT)/E-5 be restored.

2.  The applicant states that after his term of service expired in 1990, he enlisted in the Washington (WA) Army National Guard (ARNG) under the Try One in the Guard option.  He maintains that his recruiter explained that he could serve the remainder of his mandatory Reserve obligation in the WAARNG for 1 year upon notifying his unit of his election to exercise his 1-year requirement under the Try One in the Guard option.  The applicant states that after serving 1 year at his unit, he was experiencing marital problems and notified his unit that he wanted to be discharged from the WAARNG based on the Try One in the Guard option.  He adds that the operations sergeant would not acknowledge the Try One in the Guard language in his contract and, therefore, he was discharged with negative comments and reduced to the rank of specialist (SPC).

3.  The applicant provides a copy of his NGB Form 22 and his enlistment/
reenlistment documents.


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 that he enlisted in the United States Army Reserve on 17 July 1984 for 8 years.  On 17 October 1984, he enlisted in the Regular Army and served 5 years, 10 months, and 18 days.  The applicant was honorably released from active duty on 4 September 1990.  His Reserve obligation termination date was listed as 16 July 1992.

3.  On 25 October 1990, the applicant enlisted in the WAARNG for 1 year, 8 months, and 21 days in the pay grade of E-5.  His enlistment/reenlistment documents show he enlisted under the Try One in the Guard option.

4.  NGB Form 21 (Annex A – DD Form 4 Enlistment/Reenlistment Agreement – Army National Guard) to the applicant's enlistment/reenlistment contract provided details on the Try One in the Guard option.  On 25 October 1990, the applicant initialed and signed the form indicating that he understood he was enlisting/
reenlisting for Try One in the Guard and would be required to maintain satisfactory participation in the Ready Reserve for the entire period of service stipulated on his contract.

5.  On 11 May 1991, the applicant signed the Army National Guard Participation Requirements form.  The form shows he was counseled that if he was charged with nine or more unexcused absences within a 1-year period, he would be declared an unsatisfactory participant and would be considered for separation from the ARNG.


6.  Orders 24-1, dated 19 September 1991, show the applicant was reduced from SGT to SPC.  The reason cited was inefficiency, unsatisfactory participation.  The effective date was listed as 3 September 1991.

7.  The applicant was discharged from the ARNG on 18 January 1992 and transferred to the U. S. Army Reserve Control Group (Reinforcement).  His NGB Form 22, item 23, lists the authority and reason for his separation as National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27g, Unsatisfactory Participant.  The applicant’s record of service shows his net service this period as 1 year, 2 months, and 24 days.  His character of service was listed as under honorable conditions.  This form shows that the applicant was not available for signature.

8.  There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations of that board.

9.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers, in pertinent part, for enlistment and reenlistment.  Paragraph 2-27 provides guidelines for the Try One in the Guard option.  The regulation states that prior-service applicants with a remaining military service obligation (MSO) must be enlisted for the remainder of their MSO even though they may only participate in the selected Reserve for 1 year and serve the remainder of their enlistment period in the Inactive National Guard or Individual Ready Reserve.

10.  Additionally, paragraph 8-27g states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1-year period.  For counting unexcused absences, the 1-year period will begin on the date of absence and end 1 year later.

11.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) provides guidelines on participation requirements.  Paragraph 4-12 states, in pertinent part, unless an absence is authorized, a member failing to attend a scheduled single or multiple unit training assembly (MUTA) will be charged with an unexcused absence.  When absence involves a MUTA, the charge will be one unexcused absence for each 4-hour period not attended, but not to exceed four unexcused absences.  A 
notice of unexcused absence will be delivered to the member either in person or by certified mail, restricted delivery, return receipt requested, as follows:

	a.  after the fourth unexcused absence in a 12-month period; and

	b.  after each succeeding unexcused absence, up to and including the ninth absence in a 12-month period.  One letter will cover all unexcused absences from a MUTA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant implies that since he enlisted under the Try One in the Guard option, after completing 1 year he should have been honorably discharged.  As cited in paragraph 8 of this document, to be categorized as an unsatisfactory participant the applicant had to accumulate nine or more unexcused absences from scheduled drills during a 1-year period.

2.  The fact that the applicant's record of service indicates he served 2 months and 24 days over the 1-year period specified under the Try One in the Guard option is not sufficient evidence to conclude that he completed 1 year prior to becoming an unsatisfactory participant.  The evidence of record shows that on 25 October 1990 the applicant enlisted in WAARNG and on 3 September 1991 he was reduced from SGT to SPC for unsatisfactory participation.  Therefore, the evidence indicates that the applicant's unsatisfactory participation occurred prior to him completing 1 year in the WAARNG.

3.  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 has failed to submit evidence that would satisfy that requirement.  Absent such evidence, regularity must be presumed in this case.

4.  Since there is no justification to grant the applicant's request to upgrade his discharge to honorable, there is likewise no justification to restore his rank to SGT.

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)                                         AR20080018793



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ABCMR Record of Proceedings (cont)                                         AR20080018793



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