IN THE CASE OF:
BOARD DATE: 15 June 2010
DOCKET NUMBER: AR20090021642
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 correction of his records to show he was discharged from the Mississippi Army National Guard (MSARNG) in the rank/grade of sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4 and correction of his qualifying years for non-regular retirement to include all of his U.S. Army Reserve (USAR) and ARNG service.
2. The applicant states he was promoted to SGT/E-5 while assigned to the 223rd Engineer Battalion. He also states that "they" did not count all his USAR and ARNG service.
3. The applicant did not provide any additional documentary evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having had prior service in the Regular Army, the applicant's records show he enlisted in the Virginia ARNG in the rank/grade of SP4/E-4 on 3 January 1983. He held military occupational specialties (MOS) 11B (Infantryman) and 73C (Finance Specialist). He was honorably discharged on 2 January 1986.
3. He then enlisted in the MSARNG in the rank/grade of SP4/E-4 on 3 January 1986 and held MOS 75B (Personnel Administration Specialist). He was assigned to the 223rd Engineer Battalion, Clarksdale, MS. He also extended his enlistment in the ARNG by 6 years on 14 December 1987 and he was promoted to SGT/E-5 on 25 January 1988.
4. On 14 and 15 May 1988, his immediate commander reported him in an absent without leave (AWOL) status for having missed roll call, and on 22 May 1988, he was again reported in an AWOL status for having missed a scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTAs).
5. On 5 June 1988, by certified/registered mail, his immediate commander notified him that he was absent from the scheduled UTA/MUTA on 14, 15, and 22 May 1988 respectively. He also notified him that he had accrued six unexcused absences and 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 periods. The certified mail receipt shows he received delivery and accepted receipt of this letter but he failed to respond.
6. On 9 July 1988, he submitted a hand-written letter wherein he requested to be discharged from the MSARNG because he had completed Tractor-Trailer-Truck training and he planned to seek civilian employment that would take him cross-country and that the ARNG was holding him back.
7. On 10 July 1988, by memorandum through the chain of command to the MSARNG, his immediate commander requested that the applicant be discharged from the MSARNG. The commander stated he had spoke with the applicant and his civilian employment conflicted with his ARNG service.
8. On 1 and 5 October 1988, by certified/registered mail, his immediate commander notified him that he was absent from the scheduled UTA/MUTA on 18 September and 1 and 2 October 1988 respectively. The applicant was also notified that he had accrued ten unexcused absences and 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 periods. The certified mail receipt shows he received delivery/accepted receipt but he failed to respond.
9. On 18 January 1989, Headquarters, 223rd Engineer Battalion, published Orders 1-4 reducing the applicant from SGT/E-5 to SP4/E-4 for inefficiency, effective 9 January 1989 with a date of rank of 13 April 1982.
10. On 4 April 1989, the Adjutant General's Office of the MSARNG published Orders 60-78 discharging him from the ARNG effective 4 April 1989 and transferred to the USAR Control Group (Reinforcement). The orders listed his rank as SP4.
11. He was discharged from the ARNG on 4 April 1989 with a general character of service. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows his rank/grade at the time of discharge as SP4/E-4 and his date of rank as 13 April 1982.
12. He was ultimately discharged from the USAR on 6 April 1993 due to completion of his mandatory service obligation. His discharge orders also listed his rank as SP4.
13. Neither his his ARPC 249-E (Chronological Statement of Retirement Points) nor his NGB Form 23A (Army National Guard Current Annual Statement) is available for review with this case.
14. There is no evidence in his records that show he was promoted between the date he was reduced to SP4/E-4 in January 1989 and the date he was discharged in April 1989.
15. National Guard Regulation 600-200 (Enlisted Personnel Management) governs procedures covering enlisted personnel management of the ARNG. Chapter 8 of this regulation provides for reasons for separation from the ARNG. Paragraph 8-35j of this regulation states that individuals can be separated for unsatisfactory participation.
16. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) provides for service obligation, methods, and participation. It states a member is an unsatisfactory participant when nine or more unexcused absences occur during a 1-year period due to missing scheduled drills.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was reduced from SGT/E-5 to SP4/E-4 on 9 January 1989 due to inefficiency. He held the rank/grade of SP4/E-4 from the date of reduction until he was discharged on 4 April 1989. There is no evidence he was promoted after 9 January 1989.
2. With respect to correction of his qualifying years of service for a non-regular retirement, aside from the fact that neither his ARPC 249-E nor his NGB Form 23A is available for review, he is advised that correction of qualifying years of service should be addressed to the Commander, U.S. Army Human Resources Command (USAHRC), ATTN: AHRC-PSR, 1 Reserve Way, St. Louis, MO, 63132-5200.
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) AR20090021642
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