IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20090002147 


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 an upgrade of his general discharge from the Army National Guard (ARNG) to an honorable discharge; promotion to specialist six (SP6), if only acting; award of the Recruiting Badge; and award of military occupational specialty (MOS) 95B (Military Police).  

2.  The applicant states that he was discharged from the ARNG with a general discharge and was reduced in grade at the same time without any due process, such as the opportunity to redress, or notice of action.  

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  a letter, dated 31 December 2008, addressed to The Adjutant General, Washington Army National Guard (WAARNG) and the ABCMR; 

	b.  a copy of his DD Form 214 (Report of Separation from Active Duty), dated 7 January 1976; 

	c.  a photograph of his hat with specialist five (SP5) pin, Military Police Badge, and Military Police armband with ARNG patch; 

	d.  a copy of Orders 56-35, issued by Headquarters, Military Department, WAARNG, Tacoma, WA, on 8 March 1978;

	e.  a copy of National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 23 March 1978; 

	f.  a copy of a DA Form 2496 (Disposition Form), dated 6 March 1978, request for discharge from the ARNG; 

	g.  a copy of a memorandum, dated 6 March 1978, subject: expiration of term of service;  

	h.  a copy of DD Form 4 (Enlistment/Reenlistment Agreement) and all allied documents and annexes, dated 24 March 1977; 

	i.  a copy of NGB Form 22 (Report of Separation and Record of Service), dated 23 March 1978; 

	j.  a copy of a DA Form 2496, dated 6 March 1978, subject: request discharge from the ARNG; and

	k.  a copy of NGB Form 23 (ARNG Retirement Credits Record), dated on miscellaneous dates in 1977 and 1978.

4.  On 5 January 2009, the applicant also submitted a copy of his DD Form 214, dated 7 January 1978, and a copy of Orders 12-1128949, issued by the Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, on 20 December 1978, 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 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 he enlisted in the Regular Army for a period of 3 years on 8 January 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31B (Field Radio Mechanic).  His record also shows he served in Germany from on or about 7 December 1974 to on or about 28 December 1975.  He was promoted to specialist four (SP4)/E-4 on 6 April 1975.

3.  The applicant’s record reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ as follows:

	a.  on 15 July 1974, for being absent without leave (AWOL) during the period on or about 28 June 1974 through on or about 8 July 1975.  His punishment 
consisted of a forfeiture of $85.00 pay and 14 days of extra duty; and 

	b.  on 31 October 1974, for being disrespectful in language toward a superior noncommissioned officer on or about 25 October 1974.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $107.00 pay, and 14 days of extra duty.  However, on 1 November 1974, the reduction to PFC/E-3 was suspended for 180 days.   

4.  The applicant’s records further show he was honorably released from active duty on 7 January 1976 for completion of required service.  The DD Form 214 he was issued shows he completed 3 years of creditable active military service.

5.  After a break in service, the applicant enlisted in the WAARNG in the rank/grade of SP4/E-4 for a period of 1 year on 24 March 1977.  He agreed that, while in this status and as a member of the ARNG, he would attend at least 48 drills per year and serve on active duty for training at least 15 days.  

6.  On 24 March 1977, the applicant was assigned to Headquarters and Headquarters Company, 81st Infantry Brigade (Mechanized), Spokane, WA, in MOS 95B as a Military Policeman.  

7.  On 8 October 1977, by certified/registered delivery mail, the applicant's immediate commander notified the applicant that he was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) for periods 1 and 2 on 2 October 1977.  The immediate commander also notified the applicant that five (5) unexcused absences within one year would subject him to order to active duty.   He was also provided with an opportunity to explain and/or provide justification of the unexcused absence.  However, the mailed envelope shows the applicant refused delivery of this letter and that it was returned to sender.
8.  On 6 March 1978, the applicant's immediate commander notified the applicant again that he was absent from scheduled UTA or MUTA for periods 1 and 2 on 4 March 1978 and periods 1 and 2 on 5 March 1978.  He was again advised that an accumulation of five unexcused absences within a one year period would subject him to order to active duty with the Army and was also provided with an opportunity to explain and/or provide justification of the unexcused absence.  However, there is no indication that the applicant responded to this letter. 

9.  On 6 March 1978, Headquarters and Headquarters Company, 81st Infantry Brigade (Mechanized), Spokane, WA, published Orders 2-1 reducing the applicant from SP4/E-4 to private first class (PFC)/E-3, effective 6 March 1978, for misconduct (AWOL), under the authority of paragraph 6-15 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).

10.  On 6 March 1978, by DA Form 2496 to The Adjutant General, WAARNG, the applicant’s immediate commander requested the applicant be discharged from the WAARNG because of unexcused absences.  The immediate commander further indicated that the applicant had been absent without leave (AWOL) during the past eight (8) drill assemblies and refused to attend assemblies.  He further recommended a General discharge Certificate. 

11.  On 7 March 1978, Headquarters and Headquarters Company, 81st Infantry Brigade (Mechanized), Spokane, WA, published Orders 3-1 reducing the applicant from PFC/E-3 to private (PV2)/E-2 for misconduct (AWOL), effective 7 March 1978, under the authority of paragraph 6-15 of NGR 600-200.

12.  On 8 March 1978, Headquarters, Military Department, Office of the Adjutant General, WAARNG, Spokane, WA, published Orders 56-35 discharging the applicant from the WAARNG under the provisions of paragraph 7-8c of NGR 600-200 and verbal orders of The Adjutant General, Washington, with a general discharge by reason of continued and willful absence from drills, effective 23 March 1978.  

13.  On 23 March 1978, the applicant was accordingly discharged.  The NGB Form 22 he was issued shows he was discharged with a character of service of general, by reason of continued and willful absence.  Items 6a (Grade) and 6b (Pay Grade) show he was a PV2/E-2, item 13 (Primary Specialty and Title) shows he held MOS 95B, Military Policeman, and item 19 (Remarks) shows the entry "NGB Form 56a mailed to last known address." 




14.  In his letter, dated 31 December 2008, the applicant states that:

	a.  he had no knowledge that he was discharged from the ARNG or that he was reduced to PV2/E-2.  He adds that there is no evidence of any letters of warning, documents of counseling by his superiors, punitive actions concerning his reduction, or any information of attempts at contact concerning his absence or misdeeds, such as letters or receipts of refused certified letters;

	b.  when he enlisted in the WAARNG, he explained to his recruiter that he was starting a position with the local sheriff’s department and would need some consideration to make his drills and that he was assured that it would not be a problem since many of the Soldiers in the Military Police unit were also local police officers.  He further adds that he was promised a promotion to sergeant (SGT)/E-5 after his first drill.  However, after his assignment to the unit, he did not receive the promised promotion and was told there were too many E-5s in the unit and while officials at his unit were aware that the promotion promise was not binding, he was informed that the issue would be addressed;

	c.  he was promoted to acting SP6 and that in order to avoid overcrowding the noncommissioned officers ranks and due to his previous MOS, he was assigned as a radio dispatch supervisor in the unit and was issued a badge and equipment.  He was again promised that at the end of his first year, he would be promoted to SGT/E-5 and would be awarded permanent MOS 95B; 

	d.  shortly after his assignment to the unit, he arranged with the ARNG to work during the week where he was issued a recruiters badge device and assisted the ARNG recruiting at the armory and was given Military Police training material to achieve MOS 95B.  He attended summer drill at Yakima and worked hard to keep up with his training as a recruiter and a Military Policeman; and

	e.  he was aware of the problems with the ARNG and decided to leave the service because his year was up.  He turned his gear in and left, unaware of any punitive actions.  Since he was getting out, the promotion to SGT/E-5 issue was not important to him at the time.  However, the findings that he had been subject to the punitive actions described, 30 years later, suggests that there were ill feelings over the problems he caused with respect to his promotion.  He concludes that a review of his discharge is necessary as it is apparent that there are a lot of unanswered questions and lack of documentary evidence supporting his general discharge.  He has served his country honorably as a Soldier and as a career Federal law enforcement officer and special agent.



15.  NGR 600-200 prescribes policies and procedures for enlistment, reenlistment, administrative instructions, classifications, transfers and attachments, voluntary active duty, promotions, and discharges and separations of ARNG members.  Paragraph 6-15 of the version in effect at the time states that commanders who have the authority to promote enlisted personnel also have the authority to reduce personnel.  Reduction of enlisted personnel will be announced in orders published by the reduction authority.  Orders will cite the specific reason for reduction, such as inefficiency or misconduct.

16.  Chapter 7 of NGR 600-200 prescribes procedures for the separation of enlisted personnel from the ARNG.  Paragraph 7-8 of the regulation, in effect at the time, states, in pertinent part, that the State Adjutant General is responsible for making a continuous and willful absence determination.  Furthermore, a notification of discharge may be either actual or constructive.  Actual notice involves personal delivery of the discharge certificate to the individual.  A constructive notice is accomplished when actual delivery cannot be accomplished due to the absence of the individual being discharged.  When personal delivery cannot be accomplished, the NGB Form 22 will be mailed to the individual's last known address.  

17.  NGR 600-200 provides, in pertinent part, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  Army Regulation 600-8-22 (Military Awards) provides for award of the Recruiter Badge.  This badge is authorized for wear by enlisted personnel assigned to authorized duty positions which require primary MOS (PMOS)      79S (Career Counselor).  The award is retroactive to 1 Jan 1972 for Soldiers who currently hold PMOS 79S or previously held PMOS 79D or PMOS OOR (Retention NCO) or PMOS OOE (In-Service Recruiter/Transition NCOI RC Career Counselor) and meet the criteria or permanent award outlined below.   Authorization of the badge as a uniform item will be announced by commanders of units of battalion size or larger.  

	a.  Temporary wear of the badge is authorized for Soldiers who meet one of the following requirements: (a) served less than 12 months as PMOS 79S Career Counselor since graduation from the Army Retention Course; or (2) served less that 12 months as Active Guard/Reserve (AGR) Career Counselor (PMOS 79S); or (3) serve as Army Reserve Reenlistment NCO; and 

	b. Permanent wear of the badge is authorized for Soldiers who meet one of the following requirements: (1) for Regular Army, successfully completes 12 months as PMOS 79S Career Counselor since graduation from the resident Army Retention Course; or (2) for USAR or ARNG, successfully completes formal resident training and 12 months in a primary duty authorized retention coded position (PMOS 79S or other previously assigned retention MOS); or (3) Soldiers, whether RA, USAR or ARNG, who have been awarded a secondary MOS of 79S as a result of formal resident training and have performed duties as a Career Counselor in a valid MTOE or TDA 79S position for a period of 12 consecutive months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge from the ARNG should be upgraded to an honorable discharge; he should be promoted to SP6, if only acting; awarded the Recruiting Badge; and awarded MOS 95B.  

2.  With respect to the applicant’s discharge, the evidence of record shows that the applicant was absent from several UTA/MUTA.  There is no evidence of record, and the applicant did not provide convincing evidence, which shows he had a special arrangement and/or special considerations to attend drills at selected days that were convenient to him or that the alleged arrangements were approved by his unit commander.  

3.  The applicant was required to attend all scheduled UTA and annual training periods.  He chose not to.  According to the notification letters and as the applicant was aware, he was advised that if he accumulated five unexcused absences within one year, he could be ordered to active duty.  He elected to refuse delivery of the letters.  Accordingly, his immediate commander initiated elimination action against him and The Adjutant General verbally approved his discharge.  Based on his failure to attend unit drills, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge.

4.  With respect to the promotion issue, there is no evidence in the applicant's record and the applicant did not provide any evidence that he was promoted to SGT/E-5 or SP6.  Based on his absence from scheduled UTA/MUTA, his immediate commander took action to reduce him from SP4/E-4 to PFC/E-3 and then to PV2/E-2.  

5.  With respect to the 95B MOS issue, there is no evidence in the applicant's record and the applicant did not provide any evidence that he completed formal training for MOS 95B or that he was issued orders awarding him MOS 95B.  Nevertheless, his NGB Form 22 shows he held MOS 95B.  Therefore, there is no further action required.

6.  With respect to the Recruiter Badge, the applicant may have assisted other recruiters at the armory with recruiting functions; however, there is no evidence that he attended a formal recruiting course, was assigned to a recruiting position, or that he met the criteria for award of the Recruiting Badge.  Therefore, there is insufficient evidence to grant him the Recruiting Badge.

7.  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.




      _______ _ 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)                                         AR20090002147



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ABCMR Record of Proceedings (cont)                                         AR20090002147



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