IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20080020059 


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 the character of his service be changed from Uncharacterized to Honorable.  

2.  The applicant states, in effect, that Item 24 (Character of Service) of the 
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the completion of his initial active duty training (IADT) lists Uncharacterized and employers are indicating this is unclear and are not accepting it as honorable.  He claims his service was honorable but his DD Form 214 does not accurately reflect his fact. 

3.  The applicant also states that he was placed in the Individual Ready Reserve (IRR) as an unsatisfactory participant unfairly.  He claims it is clear he went to drill for a number of months, but was never paid for attending these drills.  He challenges the Board to review his leave and earnings statements (LESs) to see if pay problems were the sole problem for unexcused absences.  

4.  The applicant provides his DD Form 214 and IRR orders in support of 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's record shows that he enlisted in the United States Army Reserve (USAR) on 28 June 1989.

3.  On 27 September 1989, the applicant entered active duty to complete his IADT.  He successfully completed basic training at Fort Leonard Wood, Missouri, and advanced individual training (AIT) at Fort Lee, Virginia.  On 14 March 1990, upon completion of AIT, he was awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist) and he was released from active duty (REFRAD) and returned to his USAR unit.

4.  The DD Form 214 issued to the applicant upon his REFRAD on 14 March 1990 shows he was separated under the provisions of chapter 4, Army Regulation 635-200, by reason of expiration of term of service after completing a total of 5 months and 18 days of active duty service.  Item 24 contains the entry "Uncharacterized" to describe the character of his service.  

5.  The applicant's record contains Unexcused Absence letters to the applicant from his commander, dated 22 March and 15 June 1991.  These letters indicate the applicant was absent from scheduled unit training assemblies on 15 and      16 September 1990, 20 and 21 October 1990, and 17 and 18 November 1990.  The applicant's unit commander notified him in the 15 June 1991 letter that he had accumulated 9 unexcused absences within a 1 year period, that he decided not to excuse the absences, and that he was declaring the applicant an unsatisfactory participant and transferring him to the IRR for the balance of the applicant's military service obligation (MSO).  There are no documents on file that indicate the applicant responded to these notifications/letters, or that he ever submitted reasons for his unexcused absences.   

6.  On 31 July 1991, Headquarters, 81st USAR Command Orders 115-008 directed the applicant's reassignment to the IRR, by reason of unsatisfactory participant.  

7.  On 1 July 1997, the applicant was honorably discharged from the USAR, in the rank of private/E-2 (PV2), at the completion of his enlistment.  

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) contains the policies for the administrative separation of enlisted personnel.  Chapter 3 contains guidance on character of service/description of service and states, in pertinent part, that a separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an Entry Level Status (ELS).  For USAR and Army National Guard (ARNG) Soldiers, the regulation states, in pertinent part, that for Soldiers ordered to IADT for one continuous period, ELS terminates 180 days after beginning training.  

9.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines Army National Guard of the United States (ARNGUS) and USAR service obligations.  It prescribes policies and procedures governing the various types of service obligations and participation requirements.  Chapter 4 contains guidance on absences and paragraph 4-14 contains guidance on unexcused absences from unit training assemblies.  It states, in effect, that 9 or more unexcused absences within a 1 year period will result in a member being declared an unsatisfactory participant and transferred to the IRR to complete their remaining military service obligation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 24 of his DD Form 214 should be changed from "Uncharacterized" to "Honorable" was carefully considered.  However, by regulation, a separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an ELS, and USAR Soldiers ordered to active duty for IADT remain in an ELS for 180 days after beginning training. 

2.  The evidence of record confirms the applicant was REFRAD upon completion of his IADT after completing 5 months and 18 days.  As a result, given he did not complete 180 days of continuous active duty service, he was still in an ELS at the time of his REFRAD and his service was appropriately described as "Uncharacterized" in Item 24 of his DD Form 214 in accordance with the applicable regulatory policy.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  The applicant did not directly request relief regarding his being declared an unsatisfactory participant; however, given he indicated the action was unfair in his application, this issue was reviewed.  The record is void of a complete packet containing all the facts and circumstances surrounding his being declared an unsatisfactory participant and transferred to the IRR.  However, the record does contain notification letters from the applicant's commander that confirm the applicant accrued more than 9 unexcused absences from unit training assemblies in a 1 year period, which resulted in his being declared an unsatisfactory participant and being transferred to the IRR to complete his MSO. Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is concluded this action was accomplished in accordance with the applicable regulation.  

4.  There is no evidence of record indicating the applicant responded to the unexcused absence notifications from his commander or that he attempted to have his absences excused.  Further, even though he now claims the reason he did not attend drills was because he was never paid for the drills he did attend, there is no evidence of record showing he ever attempted to resolve this pay matter through his chain of command or other appropriate agencies at the time.  Even if the applicant's assertion that he was not paid for drills he attended is true, this was not a valid reason for him to stop attending drills.  The proper way for him to have dealt with this pay issue would have been to try and resolve the matter through appropriate channels.  Absent any evidence that this occurred, or that he ever attempted to have his absences excused based on mitigating factors, there is an insufficient evidentiary basis to conclude his being declared an unsatisfactory participant or being transferred to the IRR was in error or unjust.  

5.  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 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.




      _______ _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)                                         AR20080020059



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ABCMR Record of Proceedings (cont)                                         AR20080020059



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