BOARD DATE:	  21 July 2009

		DOCKET NUMBER:  AR20090004473 


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 his under other than honorable conditions discharge from the U.S. Army Reserve (USAR) be corrected to an honorable discharge.

2.  The applicant states that his unit of assignment in Bogalusa, LA, was infested with members of a racial/hate group and he received threats of bodily harm and/or property damage.  He adds that in one instance at the USAR base, his tires were cut.  He also adds that he asked for a transfer from that unit on numerous occasions but his requests for a transfer were not addressed.  As he was very concerned for his safety, he talked the issue over with his civilian employer and made a decision not go back to that unit.  At the time, he felt it was the only option he had.

3.  The applicant did not provide any additional documentary evidence 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 records show that he enlisted in the USAR for a period of 6 years on 12 March 1979.  He acknowledged that he was counseled relative to his Reserve obligation and responsibilities and fully understood that he was required to participate in paid drill units of the USAR for the full time of his obligation and that if he were not excused from scheduled training periods by proper authority, he would be considered absent without leave and charged with an unexcused absence.  

3.  The applicant’s records further show he was subsequently ordered to active duty for training (ADT) on 29 March 1979, completed basic combat training, and was honorably released from ADT to the control of his USAR unit on 25 May 1979.  He was assigned to the 344th Heavy Equipment Maintenance (HEM) Company, Bogalusa, LA.  

4.  On 26 November 1979, the applicant was again ordered to ADT, completed advanced individual training, and was awarded military occupational specialty 63H (Automotive Repairer).  He was honorably released from ADT to the control of his USAR unit on 22 February 1980.

5.  The applicant's records show that he had an extensive record of unexcused absence from his scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA).  The applicant's records further show that he was notified in writing of his unexcused absence and that each notification letter advised him that if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant and transferred to the Individual Ready Reserve (IRR) for the balance of his service obligation.  The records show that he acknowledged receipt of the notification letters as follows:

	a.  on 10 March 1980, by certified letter, the applicant’s immediate commander notified him that he was charged with 6 unexcused absences within a one year period and that he could be declared an unsatisfactory participant and subject to separation for misconduct under the provisions of chapter 7 of Army Regulation 135-178 (Separation of Enlisted Personnel).  The applicant signed for the certified letter; however, there is no indication that he submitted a justification of his absence with the prescribed time frame; 

	b.  on 24 April 1980, by certified letter, the applicant’s immediate commander notified him that he was charged with 8 unexcused absences within a one year period and that he could be declared an unsatisfactory participant and subject to separation for misconduct under the provisions of chapter 7 of Army Regulation 135-178.  The applicant signed for the certified letter; however, there is no indication that he submitted a justification of his absence with the prescribed time frame; and

	c.  on 11 August 1980, by certified letter, the applicant’s immediate commander notified him that he was charged with 12 unexcused absences within a one year period and that he could be declared an unsatisfactory participant and subject to separation for misconduct under the provisions of chapter 7 of Army Regulation 135-178.  The applicant signed for the certified letter; however, there is no indication that he submitted a justification of his absence with the prescribed time frame.

6.  On 30 September 1980, by certified letter, the immediate commander notified the applicant that in view of his unexcused absence, he was declared an unsatisfactory participant and that action would be taken to separate him from the USAR for misconduct under the provisions of chapter 7 of Army Regulation 135-178.  The applicant signed for the certified letter; however, there is no indication that he submitted a justification of his absence with the prescribed time frame.  

7.  The applicant’s record is void of the facts and circumstances of the chain of command’s actions subsequent to the immediate commander’s last letter.  Additionally, there is no indication that the applicant was separated as a result of this last letter.

8.  On 9 March 1981, by certified letter, the applicant’s immediate commander notified him that he was charged with 14 unexcused absences within a one year period and that he could be declared an unsatisfactory participant and subject to separation for misconduct under the provisions of chapter 7 of Army Regulation 135-178.  The applicant signed for the certified letter; however, there is no indication that he submitted a justification of his absence with the prescribed time frame.

9.  On 16 March 1981, Headquarters, 377th Corps Support Command, New Orleans, LA, issued Orders 49-3771-03, ordering the applicant’s unit of assignment to annual training from 4 April 1981 to 17 April 1981.  The applicant was accordingly notified by certified mail of the requirement to participate in this mandatory annual training; however, the certified letter was returned unclaimed  


10.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, on 12 June 1981, Headquarters, Fifth United States Army, Fort Sam Houston, TX, published two sets of orders: 

	a.  Orders 114-105, reducing the applicant from private (PV2) to private (PVT) under the provisions of paragraph 3-38d of Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), effective 12 June 1981; and 

	b.  Orders 114-106, releasing the applicant from his unit of assignment for being an unsatisfactory participant, and reassigning him to the USAR Control Group (Annual Training), effective 12 June 1981, with an under other than honorable conditions characterization of service.  

11.  On 6 January 1987, the U.S. Army Reserve Command, St. Louis, MO, published Orders D-01-900000, directing the applicant’s discharge from the USAR with an under other than honorable conditions characterization of service.

12.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and USAR enlisted Soldiers for a variety of reasons.  Chapter 7 of the regulation in effect at the time governed separation for misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  An honorable characterization of service is not authorized for a member who has completed entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate.

13.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a one year period.

14.  Army Regulation 135-178 provides for the separation of enlisted personnel of the USAR and Army National Guard.  In pertinent part, it states that the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for 

military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge from the USAR should be corrected to an honorable discharge.

2.  There is no evidence of record, and the applicant did not provide convincing evidence, which shows he encountered racial issues while serving in his USAR unit.  Furthermore, there is no evidence in the available record and the applicant did not provide substantiating evidence that shows he addressed such issues with his chain of command or the several available Army resources that could have assisted him in resolving those issues.

3.  The applicant was required to attend all scheduled unit training assemblies 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 nine unexcused absences within one year, he could be declared an unsatisfactory participant.

4.  The evidence of record shows that the applicant was absent from scheduled UTA or MUTA on multiple occasions.  In each instance, he was notified in writing and he acknowledged the notification.  It is presumed that subsequent to his history of unexcused absence, his immediate commander requested his discharge from the USAR for unsatisfactory participation.  The separation authority approved the request and he was separated on 12 June 1981 and transferred to the USAR Control Group in accordance with regulatory guidance.

5.  Based on his record of indiscipline, particularly 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.  

6.  Based on his record of indiscipline, 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, the applicant is not entitled to either a general or 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)                                         AR20090004473



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ABCMR Record of Proceedings (cont)                                         AR20090004473



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