IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021406 


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 discharge from the Army National Guard (ARNG) from a general under honorable conditions discharge to an honorable discharge.

2.  The applicant states that proper action was not taken during his discharge as his unit commander did not ensure he was informed or cared for.

3.  The applicant did not provide any additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the U.S. Marine Corps, the applicant's records show he enlisted in the North Carolina Army National Guard (NCARNG) in the rank/grade of sergeant/E-5 for a period of 3 years on 7 April 2006.

2.  The Statement of Understanding of Reserve Obligation and Responsibilities he completed indicates he understood that if he were not excused from scheduled training periods by proper authority, he would be considered absent without leave and charged with an unexcused absence; that if he were charged with nine unexcused absences, he would be declared an unsatisfactory participant and be considered for separation under other than honorable conditions and subject to reduction in grade; and that he was responsible for informing his unit in advance of any change in his address.

3.  The applicant's records show he did not hold a military occupational specialty and was assigned to the 514th Military Police Company, Winterville, NC.

4.  On 17 October 2006, 6 November 2006, and 4 December 2006, his immediate commander notified him by certified/registered mail that he was absent from the scheduled unit training assembly (UTA) or multiple UTA's on 
14-15 October 2006 (four UTA'S), 4-5 November 2006 (three UTA's), and          1-3 December 2006 (six UTA's), respectively.  In each case, his immediate commander also notified him that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant.  He was also provided an opportunity to explain and/or provide justification for the unexcused period of absence.  The certified mail receipt shows he received delivery and accepted receipt of these letters, but he failed to respond.

5.  During November 2006, he received a Noncommissioned Officer Evaluation Report for the period 1 May 2006 through 30 November 2006.  The senior rater indicated he was unable to rate him because he was absent without leave (AWOL).

6.  On 5 August 2007 and 11 September 2007, his immediate commander again notified him at the same address that he was absent from the scheduled UTA or multiple UTA's on 4-5 August 2007 (four UTA's) and 8-9 September 2007 (four UTA's).  In each case he was advised that an accumulation of nine unexcused absences within a 1-year period would subject him to be declared an unsatisfactory participant.  He was provided an opportunity to explain and/or provide justification for the unexcused period of absence.  However, the certified letters were either not accepted by him or were returned undelivered as the applicant moved, but he did not provide a forwarding address.

7.  On 15 September 2007, his immediate commander notified him by memorandum that he intended to initiate action to reduce him one grade for failure to attend his scheduled training assemblies, specifically on 8-9 September 2007.

8.  During September 2007, he received a Noncommissioned Officer Evaluation Report for the period 1 December 2006 through 14 September 2007.  His rater placed an "X" in the "No" blocks for "Loyalty," "Duty," Selfless-Service," "Honor," and "Integrity."  His senior rater indicated he was unable to rate him because he was AWOL.

9.  On 16 October 2007, he was again notified by his immediate commander that he was absent from the scheduled UTA or multiple UTA's on 13-14 October 2007.  He was advised that an accumulation of nine unexcused absences within a 1-year period would subject him to be declared an unsatisfactory participant.  He was provided an opportunity to explain and/or provide justification for the unexcused period of absence.  However, he again failed to respond.

10.  On 15 November 2007, NCARNG published Orders 319-837 reducing him from sergeant/E-5 to specialist/E-4 effective 15 September 2007.

11.  On 28 November 2007, NCARNG published Orders 332-867 reducing him from specialist/E-4 to private first class/E-3 effective 13 October 2007.

12.  On 29 November 2007, NCARNG published Orders 333-872 reducing him from private first class/E-3 to private/E-2 effective 14 October 2007.

13.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, on 10 December 2007, NCARNG published Orders 344-846 directing his discharge from the ARNG under the provisions of paragraph 8-35j of National Guard Regulation 600-200 (Enlisted Personnel Management) effective 11 December 2007 with an under honorable conditions discharge.  He was further assigned to the U.S. Army Reserve Control Group (Reinforcement).

14.  On 11 December 2007, he was accordingly discharged.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was separated with an under honorable conditions discharge due to continuous and willful absence.

15.  On 20 August 2009, the Army Discharge Review Board denied his petition to upgrade his discharge.

16.  National Guard Regulation 600-200 governs procedures covering enlisted personnel management of the ARNG.  Chapter 8 provides for reasons for separation from the ARNG.  Paragraph 8-35j states that individuals can be separated for unsatisfactory participation.

17.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 135-91 (ARNG and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) provides for service obligation, methods, and participation.  It states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled UTA's occur during a 1-year period.  A discharge under other than honorable conditions is normally appropriate; however, the separation authority may direct a general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge from the ARNG should be upgraded to an honorable discharge.

2.  The applicant's record is void of the complete facts and circumstances that ordered his discharge.  However, his record contains several unsatisfactory participation notification letters as well as a properly-constituted NGB Form 22 that shows he was discharged by reason of continued absence from UTA's with a general discharge.

3.  As a member of the ARNG, the applicant was required to attend all UTA's and annual training periods.  The evidence of record shows he did not do so.  He received unsatisfactory participation notification letters from his commander, but he failed to respond.  It appears that his immediate commander initiated elimination action against him and The Adjutant General approved his discharge.

4.  Based on his failure to attend unit UTA's, the applicant's service appears not to have met the standards of acceptable conduct and performance of duty for ARNG personnel.  This misconduct also renders his service as unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge.

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)                                         AR20090021406



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ABCMR Record of Proceedings (cont)                                         AR20090021406



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