IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100017535 


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 upgrade of his general discharge to an honorable discharge.

2.  He states the reason for his discharge was unjust because it is preventing him from reentering the military.  He contends he served honorably during his tenure and feels an upgrade would be in his best interest.

3.  He provided a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

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.  A copy of his DD Form 4 (Enlistment Contract Armed Forces of the United States) show he enlisted in the Virginia Army National Guard (VAARNG) on 
14 January 1992 for a period of 8 years.  

3.  His record contains several DA Forms 4856 (General Counseling Form) that shows he was counseled on several occasions for his failure to attend Unit Training Assemblies (UTA) between March 1992 and February 1993.

4. On 9 April 1993, his commander sent him a “Letter of Instruction (LOI) - Unexcused Absence” for missing UTA from 2 to 4 April 1993.  This form stated he was required to attend all scheduled UTAs and annual training (AT) periods.  Failure to do so could result in his transfer to the Individual Ready Reserve (IRR) as an unsatisfactory participant.  He was directed to attend the next scheduled UTA from 1-2 May 1993. 

5.  A copy of a Postal Service (PS) Form 3811 (Domestic Return Receipt) confirms an agent (F. Hill) signed for the LOI on 13 April 1993.

6.  On 5 May 1993, his commander sent him another LOI for his unexcused absence from the 1 to 2 May 1993 UTA.  A PS Form 3811 confirms an agent (signature illegible) signed for this LOI on 1 June 1993.

7.  His record contains a memorandum, subject:  Request for Discharge on (applicant's name), dated 21 May 1993.  This request shows his company commander initiated this action based on the applicant's repeated failure to attend scheduled UTAs and his lack of cooperation.  The commander noted the unit's efforts to work around his track scholarship from the Virginia Commonwealth University (VCU) by allowing him to attend mandatory track meets.

8.  On 24 May 1993, his commander submitted a packet for separation under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27g, for unsatisfactory participation.  The commander noted the reason for the action was the applicant's 9 unexcused absences within a 1-year period.  

9.  On 1 June 1993, the applicant was separated from the VAARNG under the provisions of National Guard Regulation 600-200, paragraph 8-27g, for unsatisfactory participation with issuance of an NGB Form 56a (General Discharge from the Federally Recognized Army National Guard).  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  He completed 1 year, 4 months, and 18 days of total service.
10.  There is no evidence he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within that board's 15-year statute of limitations.

11.  National Guard Regulation 600-200, paragraph 8-27g, provides guidance for separation from the ARNG for unsatisfactory participation.  A Soldier who is discharged from the ARNG with a military record that is not sufficiently meritorious to warrant an honorable discharge and reverts to control of the USAR is normally issued an NGB Form 56a under honorable conditions.  Soldiers who are declared unsatisfactory participants will be processed for involuntary administrative separation under the provisions of Army Regulation 135-91 (Army National Guard and Army Reserve - Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).

12.  Army Regulation 135-91 states, in pertinent part, a Soldier excused from inactive duty training (IDT) may be required to document the reason for the absence.  If the unit commander requires this evidence, the Soldier will normally be notified within 14 days of the absence.  Evidence submitted by the Soldier will be in the form of an affidavit when the absence was beyond the Soldier's control.  A Soldier will be charged with unsatisfactory participation when he/she accrues a total of 9 or more unexcused absences from scheduled IDT in any 1-year period. 

13.  Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) states an honorable characterization is appropriate when the quality of the Soldier'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.

DISCUSSION AND CONCLUSIONS:

1.  He contends his general discharge should be upgraded to an honorable discharge because the reason for his discharge was inaccurate.  However, he has not submitted sufficient evidence to the contrary or a convincing argument to warrant upgrading his discharge.

2.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all of the evidence of record. 

3.  His record clearly shows he did not attend scheduled UTAs on several occasions that resulted in him accruing 9 unexcused absences within a 1-year 


period, for which he was properly counseled.  In spite of the many efforts his command took to work with his university track meet schedule, it appears he failed to cooperate when asked by his command.  His quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of 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)                                         AR20100017535



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ABCMR Record of Proceedings (cont)                                         AR20100017535



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