IN THE CASE OF:	

		BOARD DATE:	27 August 2009  

		DOCKET NUMBER:  AR20090001630 


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

2.  The applicant states, in effect, he completed both his basic and advanced individual training at Fort Leonard Wood, Missouri.  He was regarded by his superiors as a well focused leader.  When he started his Reserve status and after attending several meetings, his father became ill with heart and lung problems.  He continued his meetings until his father became gravely ill.  For several months he was in the hospital and had multiple heart and lung surgeries.  The family was forced to work and care for his mother until his father could recuperate.  The applicant admits that he did miss several meetings; however, he stated he sent a letter to his unit commander stating that he had family illness.  In return, he states he received a letter from his unit stating he had been discharged under other than honorable conditions.  If there were not an illness in the family, he states, he would still be in the military today.  At the age of 18 he was very patriotic and loved the service.  To this day, he loves the service but he does not understand the repercussions of missing several meetings.

3.  The applicant states that he is now in the process of filing for employment with the Wilmington Police Department and wishes for the review to change his status to honorable since this was a medical issue and his father died shortly after all the surgeries; but the unit commanders were all notified.  He asks the Board to 


understand that he is a patriot.  He loved and still loves the service and had he known what this could bring at a later date, he would never have missed a few meetings.  He concludes his request by stating that he is serving the country today in the US Coast Guard Auxiliary as a volunteer public affairs officer.

4.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the united States) which is being accepted in lieu of a DD Form 149 (Application for the Correction of Military Record).

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 on 16 June 1980, he enlisted in the Army Reserve for 6 years in the rank and pay grade, Private, E-1.  He reported to Fort Leonard Wood to undergo his basic combat training on 1 July 1980.  He was released to his Reserve unit on 22 August 1980 after he completed this training.

3.  The applicant was advanced to the rank and pay grade Private, E-2, on 18 February 1981.  This would be the highest rank and pay grade he would achieve while in the service.  His records document no acts of valor, significant achievement, or service warranting special recognition.

4.  On 10 July 1981 the applicant reported to Fort Leonard Wood to undergo his advanced individual training.  Upon successful completion of his training, he was awarded the military occupational specialty 12B (Combat Engineer).  He was released from active duty for training and was returned to his Reserve unit on 4 September 1981.



5.  On 12 January 1981, the Commander, Company C, 330th Engineer Battalion, Philadelphia, Pennsylvania, notified the applicant, by Certified Mail, accompanied by a return receipt which the applicant signed, that the unit's records showed he had been absent from scheduled unit training assemblies (UTAs) on 7 December 1980 and on 11 January 1981 for a total of 4 UTAs.  The applicant was advised that under the provision of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) he was required to attend all scheduled UTAs and annual training (AT) periods.  In addition, the applicant was advised that absences from training assemblies could only be excused for reasons of sickness, injury, emergency, or other circumstances beyond his control.  He was told that if his absence was for one of these reasons, he should furnish the unit an appropriate affidavit or certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency or circumstances requesting that it be excused.  He was further advised that if he had family responsibilities that were causing a hardship, or if his civilian job is of critical importance to the national health or community health, he should contact the commander for advice and assistance in the proper procedures to resolve the problems.  Finally, he was advised that if he accumulates more than 9 unexcused absences within a one-year period, he could be declared an unsatisfactory participant.  As an unsatisfactory participant, he could be transferred to the Individual Ready Reserve for the balance of his statutory obligation at which time he could be discharged normally under conditions under other than honorable.  The unit commander emphasized that there was a stigma, handicap, and consequences of receiving an other than honorable discharge that could have a lasting effect.  The applicant was advised of the dates and start time of the next scheduled training assemblies.

6.  On 15 June 1981, the Commander, Company C, 330th Engineer Battalion, notified the applicant, by Certified Mail (return receipt requested which the applicant signed), that the unit's records showed he had been absent from scheduled UTAs on 14 July 1981 [believed the actual date to have been 14 June 1981] for a total of two UTAs.  By this date, the applicant had accumulated 6 unexcused absences.  The applicant was notified the next scheduled UTAs were for 18 and 19 July 1981.

7.  On 16 October 1981, the Commander, Company C, 330th Engineer Battalion, notified the applicant, by Certified Mail (return receipt requested, which the applicant signed), that the unit's records showed he had been absent from scheduled UTAs on 23, 25, 26 and 27 September 1981.  The applicant was additionally notified that he was now charged with having 12 unexcused absences within a one year period.  In view of this, the applicant was also notified that he 


had been declared an unsatisfactory participant and that action would be initiated to separate him from the unit for misconduct under the provisions of Section VII, Chapter 7, Army Regulation 135-178 (Enlisted Administrative Separations).  The applicant was advised that the commander was suspending the action for 45 days to give him an opportunity to consult with consulting counsel, to appear and present his case before an administrative separation board, to be represented at any hearing by appointed counsel, to submit a statement in his own behalf, and to waive his rights in writing.  The applicant was notified that the final decision as to whether he would be separated from the unit by transfer to the Individual Ready Reserve and the character of service that he would receive rested with the separation authority.  The applicant was notified that if his service was characterized as less than honorable, he could expect to encounter substantial prejudice in civilian life and he had the right to consult with his appointed counsel before completing the acknowledgement that was being provided to him for his action.  Finally, he was advised that an acknowledgement to the letter was required by 30 November 1981.

8.  The applicant was provided a letter, Subject:  Separation Under Army Regulation 135-178 whose purpose was to obtain acknowledgement from the member of notification of proposed separation and statement of understanding pertaining thereto.  The evidence shows that the applicant did not complete the letter nor did he return the letter of acknowledgement to the unit commander.

9.  On 16 November 1981, the applicant's unit commander prepared a Commander's Statement.  In this statement, he indicated that he had tried numerous times to contact and retain the applicant as to any cogent reason for his nonparticipation in the unit.  Since the member had not responded, he indicates that he had no other option than to remove him from the rolls of the unit and transfer him to the US Army Reserve Control Group (Reinforcement).

10.  On 2 December 1981, the applicant's unit commander recommended the applicant be considered for separation for misconduct under the provisions of Section VII, Chapter 7, Army Regulation 135-178, by reason of unsatisfactory participation.  The unit commander recommended the applicant's service be characterized as under other than honorable conditions.

11.  The applicant's battalion and group commanders recommended approval of the applicant separation as an unsatisfactory participant on 7 and 17 December 1981, respectively.



12.  The applicant's separation was approved on 29 December 1981 by the 79th Army Reserve Commander, Willow Grove, Pennsylvania.  A recommendation was made that the applicant be transferred to the Individual Ready Reserve because of unsatisfactory participation and that his service be characterized as less than honorable.

13.  The applicant's records contain Orders 43-11 AFKA-PA-RP-RU (P), Headquarters, First United States Army, Fort George G. Meade, Maryland, dated 3 March 1982, which directed the applicant's release from Company C, 330th Engineer Battalion, with an effective date of 8 February 1982, in the rank and pay grade, Private, E-1, and his subsequent assignment to the US Army Reserve Control Group (AT), St. Louis, Missouri.  The reason given for his reassignment was unsatisfactory participant.  In the Additional Instructions of the orders it was stated the applicant's service was characterized as under other than honorable conditions.

14.  On 15 July 1986, the US Army Reserve Personnel Center, St. Louis, published DARP-PAT-R Orders D-07-908034 discharging the applicant from the Reserve.  He was discharged with an effective date of 15 July 1986 with an under other than honorable conditions discharge.

15.  Army Regulation 135-178 sets forth the policies, standards, and procedures for the orderly administrative separation of Army National Guard and Army Reserve enlisted Soldiers.  Chapter 13 provides for the separation of Soldiers when it is determined the Soldier is an unsatisfactory participant.  The regulation indicates that the characterization of service normally assigned to members separated under these provisions will be under other than honorable conditions; however, the separation authority may authorize a general or honorable discharge if it is warranted based on the member's overall record of service.

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.  The applicant contends that his discharge should be upgraded since his absences were related to a medical issue and the hardship that his family had to endure as a result of his father's illness.


3.  In a letter addressed to the applicant by his commander dated 12 January 1981, he was specifically advised that if he had family responsibilities that were causing a hardship he should contact the commander for advice and assistance in the proper procedures to resolve the problems.

4.  The evidence further shows that on 16 November 1981, the applicant's commander prepared a Commander's Statement.  He indicated in this statement that he had tried numerous times to contact the applicant to determine any cogent reason for his nonparticipation in the unit.  Since the member had not responded, he indicate that he had no other option than to remove him from the rolls of the unit and transfer him to the US Army Reserve Control Group (Reinforcement).

5.  The applicant contends that all his commanders had been notified of his father's illness and the family's hardship.  His father, he stated, died shortly after all surgeries; however, there is no evidence in his service record of any action he took to notify his chain of command of his family's alleged difficulties.  The applicant also submitted no evidence with his request to support his allegations.

6.  In his application, the applicant stated that had he known what this could bring at a later date he would never have missed a few meetings; however, the evidence shows that on 16 October 1981, the applicant was notified he was now charged with having 12 unexcused absences within a one year period.  In view of this, the applicant was also notified that he had been declared to be an unsatisfactory participant and that action would be initiated to separate him from the unit for misconduct.  He was advised that the commander was suspending the action for 45 days to give him an opportunity to consult with consulting counsel, to appear and present his case before an administrative separation board, to be represented at any hearing by appointed counsel, to submit a statement in his own behalf, and to waive his rights in writing.  He was notified that the final decision as to whether he would be separated from the unit by transfer to the Individual Ready Reserve and the character of service he would receive rested with the separation authority.  He was notified that if his service was characterized as less than honorable, he could expect to encounter substantial prejudice in civilian life and he had the right to consult with his appointed counsel before completing the acknowledgement that was being provided to him for his action; and finally, he was advised that an acknowledgement to the letter was required by 30 November 1981.  The evidence shows that the applicant did not complete the letter nor did he return the letter of acknowledgement to the unit commander.


7.  The evidence shows that the applicant knew or should have known the consequences of accruing additional unexcused absences from training assemblies.  Letters on file in his service records show the unit commander advised the applicant that as an unsatisfactory participant, he could be transferred to the Individual Ready Reserve for the balance of his statutory obligation at which time he could be discharged under conditions other than honorable.  The unit commander emphasized that there was a stigma, handicap, and consequences of receiving an other than honorable discharge and it could have a lasting effect.  It appears from the evidence the applicant ignored the advice being given him by his unit commander since it also appears he signed the return receipts for certified mail in his service records.

8.  The evidence of record confirms the applicant accrued 12 recorded unexcused absences in a one-year period and was accordingly declared an unsatisfactory participant by his unit commander.  His record is void of a complete discharge packet containing the specific facts and circumstances surrounding his discharge processing; however, the letters and other documents related to the applicant's released from his unit and transfer to the Reserve (Reinforcement Control Group) carry with them a presumption of Government regularity in the discharge process.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and that the rights of the applicant were protected throughout the discharge process.

9.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  As a result, there was no basis to support the issuance of a general, under honorable discharge, or an fully honorable discharge.

10.  The applicant's unsatisfactory participation clearly diminished the overall quality of his service below that meriting a general or a fully honorable discharge.  Therefore, absent evidence of an error or injustice in the discharge process, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20090001630





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ABCMR Record of Proceedings (cont)                                         AR20090001630



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