IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090012491 


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, reconsideration of an earlier request for an upgrade of his general, under honorable conditions discharge (GD) from the Washington Army National Guard (WAARNG) to an honorable discharge.

2.  The applicant states, in effect, that the WAARNG, in a capricious and arbitrary manner, acted overzealously and unduly harsh when issuing him general, under honorable conditions discharge for missing fewer drills than the average Soldier; that the WAARNG, through its officers, negligently or willfully violated his civil rights and Army regulations in that they submitted false and misleading information to The Adjutant General of the State of Washington, concerning a request for his discharge and they failed to afford him the opportunity to address a missing drill as provided for in regulations; and that the administrative decision by the Army Board for Correction of Military Records (ABCMR) to disallow his initial appeal was incorrect, stating he did not provide new evidence to the Board.

3.  The applicant states that through public information requests directed at the WAARNG he obtained samples of discharges and other administrative actions of 43 Soldiers during the same time period he received his GD.  Of these records,
7 were inconclusive as they were lacking complete records and 3 had committed felonies, thereby warranting a GD.  He contends that he was able to determine the average number of missed drill days (not drill periods) was 7.41 days, that the least number of days of drill days missed was 2 and the highest was 16; and 
that of the 43 Soldiers less than 9 Soldiers received a GD, including those with felony convictions resulting in their discharge.  He points out that other than the 
3 days he missed, there were no other disciplinary actions in his ARNG records.  
4.  The applicant states that the 81st Brigade of the WAARNG provided false statements to The Adjutant General of the State of Washington to be used in his determination to issue a GD.  He indicates that a disposition form contains a statement that he missed more days of drill than the record actually shows ("the past" 8 drill assemblies), that the official record indicated that he missed a total of 6 drill assemblies, and that the drills missed were one day in October 1977 and two days in April 1978, and not the past 8 drill assemblies as stated in the disposition form.  He goes on to state that the WAARNG issued him a letter of instruction for missing drills on 4/5 March 1978 and the letter states that he had 15 days to provide an excuse for the missed drills; however, on 6 March 1978 the WAARNG requested his GD.  He contends that these actions clearly denied him the common Soldier's rights to "due process" and may well have violated his civil rights.  He states that while it may forever remain questionable as to why this incident happened, he maintains it was in retaliation for his whistle blowing.

5.  In the applicant's 23 June 2009 letter to a Member of Congress, he states, in effect, that he was unable to make a complete argument with his initial request due to the failure of the military to release his complete records, that the ABCMR failed to identify an issue of the number of drills supposedly missed, and that the ABCMR needs to fully consider evidence as to the mishandling of official letters supposedly mailed to him.

6.  In his 15 June 2009 request for reconsideration, he states, in effect, that the ABCMR failed to conduct a proper investigation into his claims that he was not notified of the actions and GD, but rather conducted a cursory review based upon defective information supplied by the U.S. Army and WAARNG; that the ABCMR clearly failed to identify credibility issues with the information they reviewed; and that the ABCMR failed to take into consideration his statements about the state of the ARNG in the 1970's after Vietnam.  He also contends that WAARNG records erroneously indicate he was a deputy sheriff trainee and that he attended sheriff training school. 

7.  The applicant provides a letter he wrote to a Member of Congress, dated
23 June 2009; a request for reconsideration to the ABCMR, dated 15 June 2009, with 5 attachments outlined in the letter; and an appeal to the ABCMR, dated
26 August 2009, with 3 attachments outlined in the letter in support of his request for reconsideration.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090002147, on 21 May 2009.  On 13 July 2009, the applicant's request for reconsideration was closed without action.

2.  The applicant's letter to a Member of Congress, dated 23 June 2009; his request for reconsideration to the ABCMR, dated 15 June 2009, with 
5 attachments outlined in the letter; and his appeal to the ABCMR, dated
26 August 2009, with 3 attachments outlined in the letter are new evidence which were not previously considered and warrant consideration by this Board.

3.  The applicant enlisted in the Regular Army (RA) on 8 January 1973 for a period of 3 years.  He served as a field radio mechanic and he was honorably released from active duty on 7 January 1976 for completion of required service.  The applicant enlisted in the WAARNG on 24 March 1977 for a period of 1 year.  His enlistment contract states, in pertinent part, "I will be responsible for keeping my commander advised of my current mailing address at which I will receive official correspondence and my home and business telephone numbers." 

4.  On 8 October 1977, by certified/registered delivery mail, the applicant's immediate commander notified the applicant that he was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) for periods 1 and 2 on 2 October 1977.  The immediate commander also notified the applicant that five unexcused absences within one year would subject him to order to active duty.   He was also provided with an opportunity to explain and/or provide justification of the unexcused absence.  However, the mailed envelope shows the applicant refused delivery of this letter and it was returned to sender.

5.  On 6 March 1978, the applicant's immediate commander notified the applicant that he was absent from scheduled UTAs or MUTA for periods 1 and 2 on 4 March 1978 and periods 1 and 2 on 5 March 1978.  He was again advised that an accumulation of five unexcused absences within a one year period would subject him to order to active duty with the Army and he was also provided with an opportunity to explain and/or provide justification of the unexcused absence within 15 days.  However, there is no indication that the applicant responded to this letter.

6.  On 6 March 1978, by DA Form 2496 (Disposition Form) to The Adjutant General, WAARNG, the applicant’s immediate commander requested the applicant be discharged from the WAARNG because of unexcused absences.  The immediate commander further indicated that the applicant had been absent without leave (AWOL) during the past eight drill assemblies and he refused to attend assemblies.  He further recommended a General Discharge Certificate. 

7.  On 8 March 1978, Headquarters, Military Department, Office of The Adjutant General, WAARNG, Spokane, WA, published Orders 56-35, discharging the applicant from the WAARNG under the provisions of National Guard Regulation 600-200 (Personnel - General - Enlisted Personnel Management), paragraph
7-8c and verbal orders of The Adjutant General, Washington, with a GD by reason of continued and willful absence from drills, effective 23 March 1978.

8.  On 23 March 1978, the applicant was accordingly discharged.  The National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) he was issued shows he was discharged with a character of service of general, by reason of continued and willful absence.

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 ARNG.  This regulation stated, in pertinent part, that a Soldier would be discharged from the ARNG for continuous and willful absence from military duty when the member had no remaining Reserve obligation.  Determination is the responsibility of the State Adjutant General.

10.  National Guard Regulation 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.

11.  The doctrine of laches is defined by Black's Law Dictionary, sixth
edition, as the neglect to assert a right or claim which, taken together
with lapse of time and other circumstances causing prejudice to the adverse
party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the applicant has failed to show through sufficient evidence that he made attempts to attend the missing drills, to explain his absences, or to fulfill his service obligations.

2.  The applicant does not claim that he attended the drills for which he was charged as missing or that he provided the commander an explanation for missing drills.  Additionally, he does not claim that he was unaware of the consequences of missing drills that were unexcused.
3.  The applicant's contention that the WAARNG records erroneously indicate he was a deputy sheriff trainee and that he attended sheriff training school was noted.  However, records show that in a letter he wrote to The Adjutant General, WARNG, dated 31 December 2008, he indicated that while exploring the possibility of entering the ARNG he explained to a unit technician he was starting a position with the local sheriff's department.  This letter was previously considered by the Board in his original request.

4.  Although the applicant contends that the ABCMR failed to conduct a proper investigation into his claims that he was not notified of the actions and GD (i.e., 
mishandling of mail supposedly delivered to him), the ABCMR is not an investigative body and it is the Soldier's responsibility to notify the appropriate officials of any change in his/her current mailing address while in the ARNG.

5.  While the applicant has gone to great lengths to assert fault against the WAARNG and this Board some 32 years after the fact, he has provided insufficient evidence to show that his service warrants a fully honorable discharge.  An arbitrary ruling in his favor, without knowing what his ARNG records would have shown, would cause prejudice to the Government.  Had he applied to the ABCMR in a timely manner, an equitable decision could possibly have been made in his case.  However, since it is now 32 years after he separated, the doctrine of laches is invoked in his case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090002147, dated 21 May 2009.



      ___________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)                                         AR20090012491



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ABCMR Record of Proceedings (cont)                                         AR20090012491



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