IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20090002306 


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 (UOTHC) discharge from the Army National Guard (ARNG) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he is guilty of the charges that resulted in his UOTHC discharge.  However, at the time, he had just been discharged from the Regular Army, going through a divorce, trying to hold down a full time job, and his license had been suspended, which made it difficult for him to make it to drills.  He further states that at that time of his life, he was unable to commit to his ARNG commitment; however, he believes he is now ready to commit to active service thanks to changes he has made in his life.

3.  The applicant provides no additional documentary evidence 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 he serve in the RA for 10 years, from                 6 November 1990 through 8 November 2000.  He was honorably discharged from the RA, in the rank of specialist (SPC), by reason of completion of required active service.  The DD Form 214 he was issued at the time shows he earned the following awards:  Army Achievement Medal (4th Award), National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar.  

3.  On 9 November 2000, the applicant enlisted in the Washington ARNG (WAARNG) for a period of six years, in the rank of SPC.  His Official Military Personnel File (OMPF) contains Headquarters and Headquarters Battery (HHB), 2nd Battalion, 146th Field Artillery Orders Number 281-1, dated 8 October 2001, which reduced the applicant from SPC to private first class (PFC), by reason of inefficiency; and HHB, 2nd Battalion, 146th Field Artillery Orders Number 032-1, dated 2 February 2002, which reduced him from PFC to private/E-2 (PV2), by reason of misconduct.  

4.  On 7 December 2002, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant, in which he cited the applicant's continuous absence without leave (AWOL) as the reason for taking the action. 

5.  The applicant's OMPF contains certified return receipts, dated 5 November 2002, which were sent to the applicant in an attempt to contact him regarding his unexcused absences and were returned to sender.  It also contains an Affidavit of Service, dated 10 December 2002, in which the unit administrator in a sworn statement confirmed he had mailed a notification of unexcused absences, dated 7 December 2002, to the applicant by certified mail on 10 December 2002. 

6.  On 21 May 2003, the separation authority approved the applicant's discharge for unsatisfactory participation and directed he receive an UOTHC discharge .  On 19 June 2003, the applicant was discharged from the WAARNG and as a Reserve of the Army accordingly.  The National Guard Bureau (NGB) Form      22 issued to the applicant at the time confirms he was separated under the provisions of paragraph 8-27f, National Guard Regulation (NGR) 600-200, by reason of unsatisfactory participation.

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

8.  NGR 600-200 prescribes procedures covering enlisted personnel management of the Army National Guard.  Chapter 8 provides guidance on reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  Paragraph 8-27f, in effect at the time, stated, in pertinent part, that an individual can be separated for reason of unsatisfactory participation.  

9.  Army Regulation 135-91 prescribes policies and procedures governing the various types of service obligations and participation requirements.  Paragraph 
4-14 states, in pertinent part, that a member is considered an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1-year period.

10.  Army Regulation 135-178 (Separation of Enlisted Personnel), section VII, in effect at the time, provided for the discharge or transfer to the U. S. Army Reserve Control Group (Annual Training) of statutorily obligated enlisted members who failed to participate satisfactorily in unit training as required.  The regulation applied[s] to enlisted Soldiers of the Army National Guard of the United States and the U. S. Army Reserve.  In pertinent part, it stated that the honorable characterization of service was appropriate when the quality of the Soldier’s service generally met the standards of acceptable conduct and performance of duty for military personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge was warranted when significant negative aspects of the Soldier's conduct or performance outweighed positive aspects of the Soldier's military record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded because he believes he is now ready to commit to the active military service was carefully considered.  However, this factor is not sufficiently mitigating to support an upgrade of his discharge at this late date.  

2.  The applicant’s record shows his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the separation process.  

3.  The applicant's willful absence from military duty, as evidenced by his unexcused absences from training assemblies and undistinguished record of ARNG service, clearly supported the UOTHC he received.  Absent any evidence of an error or injustice or of any distinguishing ARNG service, there is an insufficient evidentiary basis to support granting the requested relief.   

4.  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.

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)                                         AR20090002306



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ABCMR Record of Proceedings (cont)                                         AR20090002306



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