IN THE CASE OF:	  

		BOARD DATE:	    29 June 2010  

		DOCKET NUMBER:  AR20090020600 


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 an upgrade of his under other than honorable conditions discharge to honorable.  He also requests that his rank be restored and that he be returned to the U.S. Army Reserve (USAR).

2.  The applicant states he received no notice of pending discharge.  He only received the discharge order and a copy of the discharge package.  He had changed his address to Nebraska Street, his mother's address, before he deployed in 2003.  He points out that the unit did have his correct address as is shown by the envelopes containing the discharge papers.

3.  The applicant provides copies of his service record and the following:

* two envelopes addressed to him on Nebraska Street
* a voided personal check with the Nebraska Street address
* a copy of the discharge package with his old address highlighted
* a USAR Command Form 62-R (New Soldier Information) showing an assignment date of "12 06" which was partially completed on 2 and 3 March 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant served 14 years, 7 months, and 5 days on active duty in the Regular Army and was separated on 25 February 1997 due to a reduction in force.

2.  He affiliated with the USAR.  On 3 September 2003 he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  He was promoted to sergeant first class/pay grade E-7 effective 1 September 2004.

3.  The applicant was deployed for approximately 12-15 months in 2003-2005.  However, there is no DD Form 214 (Certificate of Release or Discharge from Active Duty) for this active duty period contained in the available records.

4.  The available documents in the discharge package state that the applicant was declared an unsatisfactory participant after his ninth unexcused absence from scheduled unit training assemblies on or about 5 May 2007 and that all certified mail (return receipt requested) had been returned unclaimed.  The commanding officer recommended separation with an under other than honorable conditions discharge.

5.  The intermediate commander noted that he had spoken to the applicant's commander and command sergeant major and they were agreed that the applicant had stopped attending unit training assemblies and would not respond to attempts to contact him.  He added, "Given the seniority of the Soldier and his apparent lack of professionalism, I concur with…the recommendation…"

7.  The commanding general directed discharge characterized as under other than honorable conditions and reduction to pay grade E-1.

8.  Orders were published and, effective 20 April 2008, the applicant was so discharged under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).

9.  Army Regulation 135-178, chapter 13, provides for the separation of enlisted personnel of the USAR and the Army National Guard for unsatisfactory participation when participation has become unsatisfactory and there has been no response to attempts to contact them.  Discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

10.  On 26 March 2009, the Army Discharge Review Board considered the applicant's request and declined to change the character of or reason for discharge.

11.  Army Regulation 135-178 sets forth the basic authority for the separation of USAR and the Army National Guard enlisted personnel.  Paragraph 2-9a provides 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 2-9b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
12.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-5 states, "The Army Board for Correction of Military Records 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 states that he received no notice of pending discharge.  He only received the discharge order and a copy of the discharge package.  He had changed his address to Nebraska Street, his mother's address, before he deployed in 2003.  He points out that the unit did have his correct address as is shown by the envelopes containing the discharge papers.

2.  Given the applicant's seniority and experience, there is no rationale for concluding that he missed drills except by his own volition.  His assertion that his mail was sent to the wrong address is specious; as a senior USAR noncommissioned officer he had to have known the practical necessity of staying in contact with the unit.  Furthermore, he could not reasonably have expected any other outcome of his simply not attending drills.

3.  The applicant's administrative separation must be presumed to have been properly accomplished in accordance with law and regulation.  Given his seniority and experience, the characterization of his service is appropriate.

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)                                         AR20090020600



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ABCMR Record of Proceedings (cont)                                         AR20090020600



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