IN THE CASE OF:
BOARD DATE: 25 January 2011
DOCKET NUMBER: AR20100018009
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 his rank be restored to specialist/E-4.
2. The applicant states he was unable to attend scheduled training without using personal time (holidays and vacations) which would have taken time from his family. He was more than willing to make up missed weekend drills during the week when his schedule was available from the Philadelphia Police Department. He continues by stating he was involved in a serious automobile accident that led to his retirement from the police department and documentation was forwarded to his unit by his attorney. However, his unit reduced him to pay grade E-2. He no longer has copies of the documents he provided to his unit.
3. The applicant provides no additional documents with 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. The applicant served on active duty in the U.S. Coast Guard from 29 June 1965 until he was honorably released in pay grade E-2 on 27 June 1969 due to the expiration of his term of service.
3. He was serving with the Philadelphia Police Department when he enlisted in the Pennsylvania Army National Guard in pay grade E-2 on 16 December 1981. He completed training as a military policeman and was assigned to a military police detachment in Philadelphia, Pennsylvania. He was advanced to pay grade E-4 on 1 June 1984.
4. On 10 January 1985, the applicant's company commander notified the battalion commander that the applicant had been absent from training without authority on 10-12 August 1984, 16-18 November 1984, and 9 December 1984 for a total of 12 unauthorized absences and the applicant had failed to provide justification for his absences. He recommended the applicant be discharged for misconduct due to unsatisfactory participation.
5. On 22 January 1985, the commander submitted a recommendation to separate him from the service under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 7-10r, for unsatisfactory performance. He recommended the applicant be furnished a general discharge.
6. The applicant again was absent without authority from training on
19-20 January 1985.
7. On 10 February 1985, he was reduced to pay grade E-2 with a date of rank of 16 December 1981.
8. On 11 February 1985, he was discharged from the Pennsylvania Army National Guard in pay grade E-2 under honorable conditions due to unsatisfactory participation and he was transferred to the U.S. Army Reserve Control Group (Reinforcement). He was honorably discharged from the U.S. Army Reserve on 15 December 1988 in pay grade E-2.
9. A review of his records failed to reveal any evidence to show the applicant provided any justification for any of his unauthorized absences prior to his discharge from the Pennsylvania Army National Guard.
10. National Guard Regulation 600-200 (Enlisted Personnel Management) states commanders may reduce Soldiers for inefficiency. Commanders may consider any act(s) of misconduct, to include a record of unexcused absences or unsatisfactory participation (whether or not such acts also result in disciplinary action), as evidence of inefficiency. A Soldier may be reduced one grade for unsatisfactory participation.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. The applicant's contention that he was unjustly reduced in rank was noted and was found to lack merit. In accordance with National Guard Regulation 600-200, the applicant's commander had authority to reduce him one rank for each instance of inefficiency (unsatisfactory participation). The applicant failed to show through the evidence submitted with his application and the evidence of record that he was not reduced in accordance with the applicable regulations in effect at the time.
3. In the absence of evidence to show that the applicant provided to his commander justification for the absences in question within a reasonable time frame, it must be presumed he was properly reduced in rank.
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 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) AR20100018009
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100018009
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