IN THE CASE OF:  	

		BOARD DATE:	3 December 2009  

		DOCKET NUMBER:  AR20090011695 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that at the time he was unaware of the reasons for his under other than honorable conditions discharge and that he agreed to be transferred to the Individual Ready Reserve (IRR) to serve his time and he was not aware that he would receive such a discharge.

3.  The applicant provides no additional documents with 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 was born on 1 March 1960 and he enlisted in the U.S. Army Reserve (USAR) in Sioux Falls, SD on 18 March 1980 for a period of 6 years.  He was ordered to initial active duty for training (IADT) on 31 March 1980 and he completed his training as a field artillery surveyor.  He was honorably released from IADT on 27 June 1980 and he was returned to his USAR unit in Sioux City, IA.

3.  On 5 April 1982, the applicant's commander dispatched a Notice of Unsatisfactory Participation Under Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) and Separation Action Under Army Regulation 135-178 (Enlisted Administrative Separations) by certified mail.  The notice explained that separation action was being initiated due to the applicant's repeated unexcused absences.  The notice explained that he could expect to encounter substantial prejudice in civilian life if his service was characterized as under other than honorable conditions and that there was no automatic upgrading.  He was also advised that he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade.  He signed for the notice on 14 April 1982; however, there is no evidence in the available records to show that the applicant responded to the notice.

4.  On 17 May 1982, the applicant's commander initiated action to discharge the applicant for misconduct due to unsatisfactory participation.  The commander also provided a statement in which he indicated that all correspondence was sent to the applicant by certified mail with return receipt requested and that attempts were made to hand deliver the letters of instruction; however, the applicant was not available.  He also indicated that the address to which all correspondence was sent was still a valid address and that he could determine no cogent or emergency reason why the applicant continued to be absent from drills.

5.  On 29 June 1982, Headquarters, 88th USAR Command, St. Paul, MN, Orders 17-21, relieved the applicant from assignment to his troop program unit and he was transferred to the USAR Control Group (Annual Training) by reason of unsatisfactory participation.  His service was characterized as under other than honorable conditions.

6.  On 28 April 1986, he was reduced to the rank/grade of private (PV1)/E-1 and on 6 June 1986, he was discharged from the USAR Ready Reserve with an under other than honorable conditions discharge under the provisions of Army Regulation 135-178.

7.  There is no evidence to show that the applicant ever applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.
8.  Army Regulation 135-178 provides the policies, criteria and procedures for the separation of enlisted personnel of the USAR.  It states, in pertinent part, that members of the USAR may be removed from the USAR by reason of involuntary discharge for many reasons, which include a pattern of misconduct, minor disciplinary infractions, commission of a serious offense and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate for such discharges. 

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's contention that he was unaware of the basis for his discharge has been noted and appears to lack merit.  His records clearly reveal that he was repeatedly notified that he was being charged with unexcused absences and the consequences associated with such absences.  Evidence shows the applicant personally signed for the notice of the commander's intent to initiate separation action against him based on his unexcused absences.  The notice was very specific as to the reasons for the separation action and the characterization of such a discharge.

3.  Therefore, in the absence of evidence to the show that the administrative separation processing and/or procedures were flawed, there appears to be no basis to grant his requested relief.

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)                                         AR20090011695



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ABCMR Record of Proceedings (cont)                                         AR20090011695



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