BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100019416 


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 the removal of the false reason for his demotion from master sergeant/pay grade (MSgt)/E-7 to specialist (SP) 3/E-3 [sic] E-4.  In effect, he requests correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show he was discharged in the rank/grade of MSgt/E-7.

2.  The applicant states he submitted a letter of resignation to the Alabama Army National Guard (ALARNG) 4 or 5 months before it was acted upon.  For unknown reasons his request was not acted upon.  He was discharged from the Regular Army in the pay grade of E-4 on 24 August 1947.  He spent his entire period of enlistment with the U.S. Military Academy Band at West Point, NY.  He enlisted in the ALARNG on 19 October 1954.  He was also an administrative, supply, and maintenance technician for his unit.  In October or November 1954, he wrote a letter to his company commander, Headquarters Battery, 142nd Anti-Aircraft Artillery Group giving a 30 day notice of his resignation.  He had a good record then and he had been promoted to MSgt (E-7).  He continued to work for the remainder of the 30 days.  However, he did not receive his paperwork after he left.  It appears that his resignation was not processed until several months after he had submitted the request.  This placed him in violation of drill attendance and he was ultimately demoted.  He had no idea this had happened until someone recently told him to check his ARNG records.  


3.  The applicant provides a statement from a friend, his NGB Form 22, Special Orders Number 39, NGB Form 23 (Retirement Credits Record), and pages 1 and 2 of his 4-page DA Form 24 (Service Record).

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's records are not available for review with this case.  It is believed that the applicant’s records remained at his ARNG unit at the time.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s reconstructed records show he previously served in the Regular Army from 25 February 1946 to 24 August 1947 and in the U.S. Army Reserve from 15 September 1947 to 14 September 1951.

4.  His NGB Form 22 also shows he enlisted in the ALARNG for a period of 3 years on 19 October 1954 and that at the time of his separation, he held military occupational specialty 768.60 (Supply Sergeant).  He was assigned to Headquarters Battery, 142nd Anti-Aircraft Artillery Group, Montgomery, AL.

5.  His NGB Form 22 further shows he performed satisfactorily during the periods 19 October 1954 to 18 October 1955 (75 points) and 19 October 1955 to 18 October 1956 (76 points).  However, he only earned 10 points from 19 October 1956 to 1 March 1957.

6.  On 26 February 1957, the Office of the Adjutant General, ALARNG, published Special Orders Number 39 directing the applicant's discharge from the ARNG in the rank of SP-3/E-4 effective 1 March 1957.


7.  His NGB 22 shows he was honorably discharged from the ARNG on 1 March 1957 by reason of continuous absence from drills, in accordance with paragraph 7e of National Guard Regulation (NGR) 25-3.  Item 3 (Grade) of his NGB 22 shows the entry "SP-3/E-4" and item 30 (Highest Grade Held) shows the entry "MSgt/E-7."  He completed 2 years, 4 months, and 13 days of his enlistment commitment. 

8.  Page 1 of the DA Form 24 he submitted shows he was promoted to the grade of MSgt on 1 May 1955 by authority of Special Orders Number 11 and he was reduced to SP-3 on 3 December 1956 by authority of Special Orders Number 32. Both orders were issued by the ALARNG.

9.  Page 2 of his DA Form 24 shows in the Remarks section the entry "Honorable Discharge as SP-3, effective 1 March 1957, per continuous absence from drills per Special Orders Number 3, dated 26 February 1957." 

10.  He submitted a statement from a friend who attests to the applicant's high character.  The author states that although he did not have first-hand knowledge of all the facts in the matter, he believes the action taken was merely a way to expedite the applicant's removal from the rolls.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the facts and circumstances that led to his reduction.  However, his reconstructed record contains a properly-constituted official order issued by the Office of the Adjutant General on 26 February 1957 as well as a properly-constituted NGB Form 22 that show he was discharged by reason of continued absence from drills in the rank of SP-3.  

2.  As a member of the ARNG, the applicant was required to attend all scheduled unit training assemblies (UTAs) or multiple unit training assemblies (MUTAs) and annual training periods.  It appears he did not do so.  

3.  He contends he submitted his resignation but he did not provide an approval memorandum from his chain of command or the Adjutant General that shows his resignation was approved or that he was authorized to depart his unit while this action was pending.  In the absence of evidence to the contrary, it is presumed that his reduction in rank and ultimate discharge were properly processed by the ALARNG.  Therefore, there is insufficient evidence to grant him the requested relief.



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)                                         AR20100019416



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ABCMR Record of Proceedings (cont)                                         AR20100019416



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