IN THE CASE OF:	  

		BOARD DATE:	      20 October 2009

		DOCKET NUMBER:  AR20090009646 


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 1996 general discharge be upgraded to an honorable discharge and that his narrative reason for separation be changed.  He also requests that his rank and unit shown on his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) be changed.

2.  The applicant essentially states that in 1994, while serving in the Indiana Army National Guard, he submitted a request to be placed in the Inactive National Guard (ING) due to personal family problems, and he requested relocation to Kentucky, and he was told that he was going to be allowed to move and pursue this action.  He also contends that after moving to Kentucky, he contacted the 113th Medical Battalion, his unit in Indiana, to find out what to do, and was told by a unit administrator that he had to find a unit to join in the area where he was now residing.  He further claims that at the time he gave his mailing address to the 113th Medical Battalion and searched for a unit in his area, but there were no units available.  Further, he states that he again contacted the unit administrator back in Indiana, and that he was told he would not be required to attend drills if there was no unit within 50 miles of his location and that this information would be put in his file.  He was also told he would be contacted at the address he gave if there were any problems or questions.  He continued by essentially stating that during this time, he experienced a problem with his wife's health, and remained in Kentucky until he returned to Indiana in 1998.  Approximately 1 year later, he talked with his sister-in-law and her husband who went through a divorce and whose address was the one he had given to his unit, and he was told that a big yellow envelope came to their address, but neither of them knew what happened to it or what was in it.  He asserts that he checked with his unit in Indiana, and he was told that the envelope more than likely contained his discharge paperwork.  He further contends that twice he was sent paperwork from his unit and he was told that if he needed more of something he would have to contact the Federal Building on Pennsylvania Avenue.  He also claims that he has been disabled since 9 May 2002, and that he has talked to a few people at the 38th Infantry about his paperwork.  He was told that he was sent paperwork and a certificate showing he was attached to Company F, 38th Support Battalion.  

3.  The applicant also states, in effect, that he was always on time and took his service seriously, and that he was awarded the Army Achievement Medal and a Commendation Medal.  He further indicates he would have liked to have completed 20 qualifying years of service, but he was unable to do so.  Additionally, he states that paperwork shows he was reduced in rank and pay grade from sergeant (SGT)/E-5 to private (PVT)/E-2, that he was an unsatisfactory participant, and that he was not available to sign his NGB Form 22.  He contends that he was never an unsatisfactory participant and that he never took time off during duty hours, and actually stayed in the motor pool with others in the maintenance section to work on vehicles.  He also asserts that he was never contacted at the address that he gave to his unit administrator, but this address was the same address where his discharge packet was sent.  He questions why he was not notified about reductions in rank or anything.  He states that he would have been present, but paperwork states that he had 16 periods of absence without leave (AWOL).  Further, he contends that he does not understand what happened because he was proud to be a unit member and a Soldier, and would like to have a new discharge certificate with his proper unit and rank on it.  He further claims that he would not have devoted so much time to get to the rank of SGT to be almost non-existent to the State of Indiana, and provides the names of some people who may be contacted about his duty performance.    

4.  The applicant provides a five-page self-authored letter; his NGB Form 22 and General Discharge Certificate that were issued at the time of discharge on
1 April 1996; his DD Form 214 (Certificate of Release or Discharge from Active Duty) which covered his active duty for training from 27 November 1981 to 
12 May 1982; his DA Form 2-1 (Personnel Qualification Record – Part II); a 
DD Form 220 (Active Duty Report), dated 30 November 1981; orders, dated 
25 July 1983, which awarded him military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic); a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 31 July 1993; a certificate for the Army Achievement Medal; a letter, dated 30 October 1994, from the Russell Springs, Kentucky Police Department; a letter written by the applicant’s commander to the applicant, dated 28 December 1995, regarding more than 16 periods of AWOL; orders, dated 12 January 1996, which reduced him from SGT/E-5 to specialist (SPC)/E-4, effective 12 January 1996; orders, dated 30 January 1996, which reduced him from SPC/E-4 to PFC/E-3; orders, dated 30 January 1996, which reduced him from PFC/E-3 to PVT/E-2; orders, dated 21 March 1996, which discharged him from the Army National Guard on 1 April 1996 and transferred him to the United States Army Reserve (USAR) Control Group (Reinforcement); the mailing page of a leave and earnings statement; leave and earnings statements for checks dated 27 October 1993 and 22 July 1994; an undated and unsigned letter from a physician from Greenview Hospital in Bowling Green, Kentucky; a copy of an H and R Block cover sheet; an undated, letter from H and R Block regarding the applicant's and his wife's 1994 taxes; correspondence from the Commonwealth of Kentucky Revenue Cabinet regarding 1998 Kentucky individual income tax forms; the applicant’s Army National Guard Retirement Points History Statement, dated 24 April 2002; a photocopy of his military identification card which expired on 25 August 1994; two U.S. Government Motor Vehicle Operator's Identification Cards; a photocopy of some awards; decorations; and insignia in support of this 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 majority of the applicant’s military records are not available for review.  This case is primarily being considered using the evidence provided by the applicant.

3.  The available records show the applicant enlisted in the Indiana Army National Guard on 26 January 1981.  He entered active duty for training, on 
27 November 1981, completed basic and advanced individual training, and was awarded MOS 63W (Wheel Vehicle Repairer).  He was released from active duty for training, on 12 May 1982, and reverted back to his National Guard unit of assignment with Headquarters and Company A (Support), 113th Medical Battalion.  He was promoted to PVT/E-2 on 27 May 1982, and to PFC/E-3 on 
23 March 1983.  On 23 December 1983, he was promoted to SPC/E-4, and he was later promoted to SGT/E-5.  In February 1988, his unit was reorganized as Headquarters and Support Company, 113th Medical Battalion.  On 10 October 1989, he was transferred to the ING, and remained in this status until he returned to a drilling status with the Indiana Army National Guard on 1 May 1990 with Headquarters and Support Company, 113th Medical Battalion.  On 1 September 1993, this unit was reorganized as Company F (Medical), 38th Main Support Battalion.

4.  Orders, dated 12 January 1996, reduced the applicant from SGT/E-5 to SPC/E-4 effective 12 January 1996.

5.  Orders, dated 30 January 1996, reduced the applicant from SPC/E-4 to PFC/E-3.

6.  Orders, also dated 30 January 1996, further reduced the applicant from PFC/E-3 to PVT/E-2.

7.  Although the complete facts and circumstances pertaining to the applicant's discharge from the Indiana Army National Guard are not available for review, his military records did contain a properly-constituted NGB Form 22.  This document shows the applicant was discharged under honorable conditions from the Indiana Army National Guard on 1 April 1996 under the provisions of paragraph 8-27g, National Guard Regulation 600-200 (Enlisted Personnel Management) due to unsatisfactory participation.  Items 5a (Rank) and 5b (Pay Grade) of this document essentially show his rank and pay grade at the time of his discharge from the Indiana Army National Guard was PVT/E-2.  Item 8a (Station or Installation at Which Effected) shows that his last unit of assignment was Company F (Medical), 38th Main Support Battalion, Indianapolis, Indiana.  At the time of his discharge from the Indiana Army National Guard, he was transferred to the USAR Control Group (Reinforcement).  On 29 August 2000, he was honorably discharged from the USAR.

8.  On 27 May 2009, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge and change his narrative reason for separation.

9.  National Guard Regulation 600-200, in effect at the time, set forth the basic authority for the personnel management of enlisted personnel of the Army National Guard.  Paragraph 8-27g of this regulation stated that a Soldier would be discharged from the Army National Guard for unsatisfactory participation.  This regulation also stated that the Soldiers would be notified of recommendations for involuntary discharge and afforded a reasonable opportunity to provide a written response for consideration by the separation authority.  Characterization of service would be in accordance with applicable State codes.

10.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) provides, in pertinent part, that Soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any 1-year period a total of nine or more unexcused absences.  For counting unexcused absences, the 1-year period will begin on the date of the absence.  It will end 1 year later.  Beginning dates will be set for each succeeding unexcused absence.  When longer than 1 year elapses from the date of an absence, it no longer will be counted; the new 1-year period will begin on the date of the later absence, if any.

11.  National Guard Regulation 600-200 also provides guidance on the preparation of the NGB Form 22.  This regulation essentially states that for items 5a and 5b, entered the rank and pay grade a member held at time of separation. It also states that the current unit of assignment, city, state, and zip code will be entered in item 8a.  

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his 1996 general discharge should be upgraded to an honorable discharge and his rank and unit shown on his NGB Form 22 should be changed.

2.  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.

3.  The applicant’s contention that he submitted a request in 1994 to be placed in the ING due to personal family problems was noted; however, there is no evidence in the available records, and the applicant failed to provide any evidence, which shows that he requested to be transferred to the ING or, more importantly, that any request that he be transferred to the ING was approved by his command.  

4.  Although the complete facts and circumstances pertaining to the applicant’s discharge from the Army National Guard were not available for review, it is clear that he was involuntarily discharged from the Army National Guard on 1 April 1996 under the provisions of paragraph 8-27g, National Guard Regulation 
600-200 due to being an unsatisfactory participant.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  In view of the foregoing, there is no basis for upgrading the applicant's general discharge from the Army National Guard to an honorable discharge.

5.  It is evident that that the applicant contends that his reductions in rank, presumably for unsatisfactory participation, were the result of him not being properly notified.  He states he moved from Indiana to Kentucky and provided his command in Indiana an address other than the address where he was residing.  While the available records are silent as to the number of attempts his command made to inform him of the unexcused absences, the fact that he claimed a big yellow envelope was sent to his relatives’ address, and he was not even made aware of its delivery for approximately 1 year and that he was never actually given the alleged envelope, only serves to show the applicant did not provide his command with a reliable address to contact him.  His relatives apparently failed to inform the applicant of the alleged envelope in a timely manner, forward the envelope to the applicant in Kentucky, or even to keep accountability of the alleged envelope.  It is reasonable to presume that any other attempts by his command to contact him in writing met a similar fate.  This is not the fault of his command, but his fault for not providing a reliable address to his command.  

6.  While the applicant contends that he was never an unsatisfactory participant, the evidence provided by the applicant appears to prove otherwise.  As a result, his systematic reduction in rank from SGT/E-5 to PVT/E-2 appears to have been accomplished in accordance with governing regulations.  As a result, there is no basis for changing his rank on his NGB Form 22.

7.  While the applicant contends that he was never assigned to Company F (Medical), 38th Main Support Battalion, his records appear to show that his unit was reorganized from Headquarters and Support Company, 113th Medical Battalion to Company F (Medical), 38th Main Support Battalion on 
1 September 1993.  As a result, it appears that his NGB Form 22 accurately reflects this as his last unit of assignment.  In view of the foregoing, there is no basis for changing the unit on his NGB Form 22.
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)                                         AR20080013922



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ABCMR Record of Proceedings (cont)                                         AR20090009646



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