BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090007794 


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

2.  The applicant states that in June and July he went to his drill [scheduled reserve training assembly] and let his chain of command know that he was having sexual problems that started in the service and requested to be taken to the hospital.  However, he was refused and while he could have gone over his sergeant's head, he did not.

3.  The applicant provides a letter from his employer, a copy of his police record, and a copy of a Standard Form 600 (Chronological Record of Medical Care), dated 17 April 1978.

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 enlisted in the Illinois Army National Guard (ILARNG) in Chicago, Illinois, on 8 September 1977 for a period of 6 years.  At the time of his enlistment he indicated that he understood that he would be responsible for keeping his commander advised of his current mailing address, home, and business phone numbers.  He also acknowledged that he understood he was required to attend at least 48 drills per year and serve on active duty for training at least 15 days per year.

3.  He completed his one-station unit training at Fort Leonard Wood, Missouri, and was returned to his ILARNG unit for duty as an indirect fire infantryman.

4.  On 7 June 1980, he signed an MNIL Form 135-178-C (Statement of Understanding of Reserve Obligation and Responsibilities) in which he acknowledged that he understood that if he was not excused from scheduled training periods by proper authority, he would be considered absent without leave (AWOL) and would be charged with an unexcused absence.  He also acknowledged that if he was charged with nine unexcused absences he could be processed for separation for misconduct and reduced in grade.

5.  During the period of February to July 1982, at least six notices were dispatched to the applicant by certified mail notifying him that he was being charged with unexcused absences.  All of the notices were addressed to the address currently contained on his application to the Board and were returned undelivered.

6.  On 14 July 1982, the applicant's commander dispatched a letter to the applicant informing him that he had been declared an unsatisfactory participant and was initiating action to discharge him from the service under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) for misconduct due to his willful and continuous absence from training assemblies.  The applicant was advised of his rights and was informed of the substantial prejudice he could expect to encounter if he was discharged under other than honorable conditions.  The applicant signed for the notification on 23 July 1982.

7.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his records do contain a duly authenticated National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows that he was discharged under other than honorable conditions on 3 September 1982 under the provisions of Army Regulation 135-178 for misconduct due to continued absence from drills.  He had served 4 years, 11 months, and 25 days of total service for pay.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).

8.  On 29 February 1984, the applicant was discharged from the USAR under other than honorable conditions.

9.  There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 135-178 serves as the authority for the separation of enlisted personnel in the USAR and the Army National Guard.  The regulation in effect at the time provided that personnel discharged under chapter 7 for misconduct or other patterns or acts of conduct would be discharged under other than honorable conditions.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge under the provisions of Army Regulation 135-178 was administratively correct and in conformance with applicable regulations. 

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

3.  The applicant's contentions have been noted by the Board; however, they are not supported by the evidence of record.  Numerous attempts were made by his chain of command to contact the applicant to no avail regarding his failure to participate and his contractual obligations.  The applicant simply stopped participating and this amounted to being AWOL for the remainder of his contractual obligations.



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)                                         AR20090007794



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ABCMR Record of Proceedings (cont)                                         AR20090007794



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