IN THE CASE OF:	

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090002837 


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 that the under other than honorable conditions discharge that she received from the Army National Guard (ARNG) be upgraded to an honorable discharge. 

2.  The applicant states that the characterization of her service is false and/or is based on inaccurate reporting of her esteemed service in the ARNG.  She adds that it is ethically right that her discharge be upgraded to honorable and her participation reported as desirable.  

3.  The applicant provides a self-authored statement, dated 10 February 2009, in support of her 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.  With prior enlisted service in the U.S. Air Force, the applicant’s records show she enlisted in the Indiana Army National Guard (INARNG) for a period of 2 years on 17 September 1979.  She held military occupational specialty (MOS) 75E (Personnel Actions Specialist) and was assigned to the 38th Adjutant General Company, Indianapolis, IN.  She was honorably separated in the rank/grade of private first class (PFC)/E-3 on 16 September 1981 by reason of expiration of term of service (ETS).

3.  After a break in service, the applicant’s records show she enlisted in the INARNG in the rank/grade of PFC/E-3 for a period of 1 year on 6 May 1982.  The Statement of Understanding of Reserve Obligation and Responsibilities she completed indicates that she understood that if she were not excused from scheduled training periods by proper authority, she would be considered absent without leave and charged with an unexcused absence; that if she were charged with nine (9) unexcused absences, she would be declared an unsatisfactory participant and be considered for separation under other than honorable conditions and subject to reduction in grade; and that she was responsible for informing her unit in advance of any change in her address.  

4.  The applicant's records show she held military occupational specialty (MOS) 94B (Cook) and was assigned to Company C, 113th Medical Battalion, Remington, IN. 

5.  On 26 May 1982, by certified/registered mail, the applicant's immediate commander notified the applicant that she was absent from the scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTA’s) on 22 and 23 May 1982 for periods 1 through 4.  The immediate commander also notified the applicant that an accumulation of nine (9) unexcused absences within 1 year would declare her an unsatisfactory participant.  She was also provided an opportunity to explain and/or provide justification for the unexcused period of absence.  The certified mail receipt shows the applicant received delivery and accepted receipt of this letter on 26 May 1982.

6.  On 15 June 1982, the applicant's immediate commander notified the applicant again at the same address that she was absent from scheduled UTA or MUTA on 12 and 13 June 1982 for periods 1-4.  She was again advised that an accumulation of nine unexcused absences within a 1 year period would subject her to be declared an unsatisfactory participant.  She was also provided an opportunity to explain and/or provide justification for the unexcused period of absence.  However, the certified letter was returned undelivered as the applicant moved but did not provide a forwarding address.


7.  On 13 August 1982, the applicant requested a conditional release from the INARNG with an ETS date of 13 November 1982.  Her request was approved and as part of the release she acknowledged she understood that as a Reserve member she had a contractual obligation to continue service in the Ready Reserve under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).  She acknowledged that in conjunction with the relocation she was required to be accepted in a Reserve Component unit prior to the expiration of her release.  She also acknowledged that she had periods of unexcused absence from 22 to 23 May 1982 and from 12 to 13 June 1982.

8.  There is no evidence in the applicant's records that show she fulfilled the requirements of the conditional release.   

9.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, on 14 January 1983, the Military Department of Indiana, Adjutant General’s Office, Indianapolis, IN, published Orders 12-34 reducing the applicant from PFC/E-3 to private (PVT)/E-1.  Additionally, the orders directed that the applicant be discharged from the ARNG under the provisions of chapter 7 of National Guard Regulation (NGR)
600-200 (Enlisted Personnel Management) effective 12 January 1983 with an under other than honorable conditions discharge.  She was further assigned to the U.S. Army Reserve (USAR) Control Group (Annual Training).

10.  On 12 January 1983, the applicant was accordingly discharged.  The applicant’s National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows she was separated with an under other than honorable conditions discharge, due to unsatisfactory participation. 

11.  The applicant's NGB Form 23 (Army National Guard Retirement Credits Record) shows that during the period from 6 May 1982 to 12 January 1983, the applicant completed 10 UTAs and performed 16 days of active duty training (ADT) from 10 July to 25 July 1982.  

12.  On 19 January 1984, The Office of the Adjutant General, USAR Components Personnel and Administration Center, St. Louis, MO, published Orders D-01-904785, directing the applicant’s discharge from the USAR with a character of service of under other than honorable conditions.  

13.  In her self-authored statement, dated 10 February 2009, the applicant indicates that she consistently fulfilled her assignments and performed her duties with the 113th Medical Battalion until July 1982 when she was authorized a voluntary transfer to the VAARNG.  She adds that in July 1982, she made six (6) in person trips to the VAARNG in Falls Church, VA, in an attempt to get assigned to the unit with no success.  She also adds that there was no lack of participation or unsatisfactory participation, misconduct, incidents of insubordination, violent acts, disciplinary problems, reductions, Uniform Code of Military Justice violations, or security violations.  She concludes that she should not have received an under other than honorable conditions discharge. 

14.  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.  

15.  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.

16.  NGR 600-200 provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the under other than honorable conditions discharge that she received from the ARNG should be upgraded to an honorable discharge.  

2.  The applicant’s record is void of the facts and circumstances surrounding her discharge; however, her record shows she was absent from several UTA’s/MUTA’s.  There is no evidence of record, and the applicant did not provide any convincing evidence, which shows she performed duties during the months of May and June 1982 or that she performed any duties as her conditional release stipulated.  Therefore, the available evidence is insufficient to upgrade her ARNG discharge.

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 did not submit evidence that would satisfy this requirement.  Therefore, she 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.



      _______ _   _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)                                         AR20090002837



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ABCMR Record of Proceedings (cont)                                         AR20090002837



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