BOARD DATE:	 16 December 2010 

		DOCKET NUMBER:  AR20100015932 


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 that her records be corrected as she was discharged due to error. 

2.  The applicant states, in effect, that she was on maternity leave when her child was born on 3 July 1979.  She had attended all the required drills up to the birth of her child.  She had volunteered to go to drills on 15 and 16 July 1979 but took ill the night before.  She called her unit officer to explain the situation.  She was told to bring in papers from her doctor explaining that she was on maternity leave.  She turned those papers in to the desk clerk and she thought everything was taken care of until she received a letter telling her she was discharged.  She asks if she was entitled to a leave of absence during her term of pregnancy.   

3.  The applicant provides a copy of the certification of birth for her daughter. 

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.  The applicant enlisted in the U.S. Army Reserve (USAR) for 3 years on         17 March 1976.  On 11 May 1976, she was ordered to active duty for training (ADT).  She completed basic combat and advanced individual training at Fort Eustis, Virginia, where she was awarded military occupational specialty (MOS) 61B (Seaman) and at Fort Jackson, South Carolina, where she was awarded MOS 76Y (Unit Supply Clerk). She was released from ADT to the control of her USAR unit on 7 December 1976.

3.  The applicant’s DD Form 4 (Enlistment or Reenlistment Agreement-Armed Forces of the United States) reflects that on 14 January 1979 the applicant reenlisted in the USAR for a period of 3 years.  In that document she indicated she would serve at least 3 years satisfactorily in the Ready Reserve.  While in that status she was obligated to attend at least 48 drills per year and serve on active duty for training at least 14 days per year; or, serve on active duty for training not more than 30 days per year; unless excused by competent authority. 

4.  Records show that 1 August 1979, the applicant signed a 1AA Form 840-R (Letter of Instructions-Unexcused Absences) which was mailed via certified mail. This document indicates that attendance records of the unit show that she was absent from two scheduled unit training assemblies on 15 July 1979. 

5.  On 5 December 1979, the applicant’s unit mailed another 1AA Form 844 (Contractual Obligator) (Army Regulation 135-91) which reflected the applicant had missed four unit training assemblies on 1-2 December 1979.  The unit also mailed the applicant a 1AA Form 843 which reflected that she was charged with unexcused absences for the assemblies conducted 1-2 December 1979.  The applicant was given until 15 December 1979 to inform her unit commander of any cogent reason(s) for the absences.  

6.  The unit also prepared a letter to the applicant dated 5 December 1979 announcing that she had been reduced by Order 17-1, dated 5 December 1979. She was also advised of her right to appeal that action.  The envelope in the available records reveal the documents were returned as unclaimed despite 
3 notices.  The address for this envelope was the same as that used for the document mailed in paragraph 4 above.  

7.  On 2 January 1980, the applicant’s unit commander initiated 1AA Form 831 (Request for Assignment or Attachment of USAR Personnel).  In this action the unit commander recommended that the applicant be issued a general discharge due to non-attendance of drills.  On 22 February 1980, Headquarters, First United States Army, Orders 35-13, announced that the applicant was discharged effective 22 February 1980, with a general discharge.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within its 15-year statute of limitations.

9.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation.  The regulation provided that the separation authority could disapprove the commander’s recommendation for discharge for misconduct and direct disposition by other means, disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should separated for misconduct.  When discharged under this provision, the characterization of service was normally under other than honorable conditions.  The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.

10.  Army Regulation 135-178 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.

11.  Army Regulation 135-178 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was declared a non-participant during her period of service in 
the USAR.  She was provided notices that she had missed training assemblies 
on 15 July 1979 and again on 5 December 1979.  She signed for the 15 July 
1979 notice but the 5 December 1979 notice was returned to the unit as 
unclaimed despite the fact that it was mailed to the same address as the 
previous notice.  The applicant was contractually obligated to participate in 
required training or provide an acceptable excuse.  There is no available 
evidence that she was unable to attend training or placed on maternity leave and 
excused from participation in training.

2.  The applicant's contention that her discharge was in error has been carefully considered and it was determined that there is insufficient evidence to support her 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)                                         AR20100011319



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ABCMR Record of Proceedings (cont)                                         AR20100015932



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