IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100009246 


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, an upgrade of his 1981 under other than honorable conditions discharge from the Illinois Army National Guard (ILARNG) to an honorable discharge. 

2.  He states he did his job in an expert manner and was a number one mortar man.  His highest rank was pay grade E-4 and he was a squad leader.  The things he knows now, he wished he did then.  He thinks he should have an honorable discharge, not other than honorable, and he would love to go to college.   

3.  He provides no additional documentation in support of 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.  Having had prior service in the New York ARNG, his records show he enlisted in the ILARNG on 5 April 1976, for 6 years.  He was advanced to pay grade E-2 on 28 May 1976.  He was ordered to active duty for training (ADT) and entered active duty on 11 July 1976.  He was awarded military occupational specialty 11C, Infantry Indirect Fire Crewman.  He was honorably released from ADT on 21 October 1976 and reverted back to the ILARNG.  

3.  He was promoted to pay grade E-4 on 20 January 1978 and reduced to pay grade E-2 on 20 May 1979.  

4.  In February, March, May, June, and August 1980, he was notified by certified mail of his unexcused absences from scheduled unit training assemblies.  He acknowledged receipt of some of the notifications.

5.  On 4 September 1980, he was notified in writing of his unit commander’s intent to separate him from the ILARNG by reason of misconduct, under the provisions of Army Regulation 135-178 (ARNG and Army Reserve Separation of Enlisted Personnel), chapter 7, under other than honorable conditions.  The unit commander stated the applicant had been declared an Unsatisfactory Participant as outlined in Army Regulation 135-91 (ARNG and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).  The reason for the proposed action was his non-attendance at scheduled unit training assemblies (UTA) or multiple unit training assemblies (MUTA) from 12 December 1979 through 3 August 1980.  The letter also advised the applicant of his rights.

6.  Orders 216-4 were issued by the State of Illinois on 3 November 1981, reducing him from pay grade E-2 to pay grade E-1 for misconduct and discharging him from the ILARNG, with a character of service of under other than honorable conditions, under the provisions of Army Regulation 135-178.  He was also issued an NGB Form 22 (Report of Separation and Record of Service).

7.  On 4 October 1982, he was discharged from the U.S. Army Reserve (USAR) Control Group (Annual Training) under other than honorable conditions.

8.  He enlisted in the ILARNG in pay grade E-1 on 12 December 1985.  He was discharged again for unsatisfactory participation on 31 March 1986, with a general discharge, and was transferred to the Individual Ready Reserve (IRR). He was honorably discharged from the IRR on 12 February 1987.  

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10.  Army Regulation 135-178, then in effect, governed the administrative separation of enlisted personnel from the ARNG and Army Reserve.  Chapter 7 specified a Soldier was subject to discharge for unsatisfactory participation when it was determined the Soldier was an unsatisfactory participant as prescribed in Army Regulation 135-91.  The service of a Soldier discharged for unsatisfactory participation would normally be characterized as under other than honorable conditions.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

11.  Army Regulation 135-178 specified an honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 135-178 also specified a general discharge was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, in September 1980, the ILARNG declared him an Unsatisfactory Participant for non-attendance at UTA/MUTA from 12 December 1979 through 3 August 1980. He was issued orders and an NGB Form 22 discharging him from the ILARNG for misconduct on 3 November 1981, with a character of service of under other than honorable conditions, in accordance with regulatory guidance.  

2.  He provided no evidence or a convincing argument to show his 1981 discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence, it appears his administrative separation and characterization of his service was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in 1981 in accordance with pertinent regulations with due process.

4.  In view of the foregoing, there is no basis for granting the applicant's request.
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)                                         AR20100009246





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009246



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1