BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100019482 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states he was younger at the time and did not realize his military career was important.  He needs his discharge upgraded so he may receive benefits from the Department of Veterans Affairs hospital and continue his education.

3.  The applicant provides the following documents:

* DD Form 214 (Report of Separation from Active Duty), dated 17 November 1978
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 8 November 1982
* U.S. Army Reserve discharge orders, dated 29 August 1984

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 show he was born on 9 January 1961 and enlisted in the Illinois Army National Guard (ILARNG) for a period of 6 years on 26 May 1978 at 17 years and 5 months of age.

3.  He subsequently entered active duty for training on 23 July 1978, completed basic combat and advanced individual training, and he was awarded military occupational specialty 94B (Food Service Specialist).  He was honorably released from active duty on 17 November 1978 to the control of his ARNG unit.  He was assigned to the 508th Medical Company (Clearing), Chicago, IL.

4.  On 9 January 1982, he completed a Statement of Understanding of Reserve Obligation and Responsibilities and indicated he understood that if he were not excused from scheduled training periods by proper authority, he would be considered absent without leave (AWOL) and charged with an unexcused absence; that if he were charged with nine unexcused absences, he would be declared an unsatisfactory participant and be considered for separation under other than honorable conditions and subject to reduction in grade; and that he was responsible for informing his unit in advance of any change in his address.

5.  On 7 February 1982, the applicant's immediate commander notified the applicant by certified/registered mail that he was absent from the scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTA's) on 6 and 7 February 1982 for periods 1 through 4.  The immediate commander also notified the applicant that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant.  He was provided an opportunity to explain and/or provide justification for the unexcused period of absence.  The certified mail receipt shows the applicant failed to claim delivery of this letter.

6.  On 10 March 1982, the applicant's immediate commander notified the applicant again at the same address that he was absent from scheduled UTA or MUTA's on 6 and 7 March 1982 for periods 1 through 4.  He was again advised that an accumulation of nine unexcused absences within a 1-year period would subject him to be declared an unsatisfactory participant.  He was again provided an opportunity to explain and/or provide justification for the unexcused period of absence.  However, the certified letter was returned unclaimed.

7.  On 1 May 1982, the 508th Medical Company (Clearing) published Orders 3-2 reducing him from specialist four/E-4 to private first class (PFC)/E-3 for misconduct.

8.  On 12 September 1982, the applicant's immediate commander notified the applicant again at the same address that he was absent from scheduled UTA or MUTA's on 12 September 1982 for periods 3 through 4.  He was informed that he had accrued 10 unexcused absences and advised that an accumulation of nine unexcused absences within a 1-year period would subject him to be declared an unsatisfactory participant.  He was again provided an opportunity to explain and/or provide justification for the unexcused period of absence.  The certified mail receipt shows he received delivery and accepted receipt of this letter, but he failed to respond.

9.  On 16 September 1982, the applicant's immediate commander notified the applicant by certified letter that he had been declared an unsatisfactory participant due to his excessive amounts of unexcused absences during a 
12-month period.  As such, he was initiating separation action against him under the provisions of chapter 7 of Army Regulation 135-178 (Enlisted Administrative Separations).  The immediate commander further notified him that he was suspending this action for 45 days to give him the opportunity to exercise the following rights:

* consult with counsel
* appear before an administrative separation board
* be represented by counsel
* submit a statement on his own behalf
* waive his rights

10.  There is no evidence in the applicant's records that he responded to the separation notification memorandum within the allotted time frame.

11.  On 18 November 1982, the ILARNG published Orders 227-1:

* reducing him from PFC/E-3 to private/E-2
* discharging him from the ARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) effective 18 November 1982 by reason of misconduct with a discharge under other than honorable conditions
* reassigning him to the U.S. Army Reserve Control Group (Individual Ready Reserve)

12.  On 18 November 1982, the applicant was accordingly discharged.  The applicant's NGB Form 22 shows he was separated with an under other than honorable conditions discharge due to misconduct.  However, this form erroneously listed the effective date of discharge as 8 November 1982.

13.  On 29 August 1984, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders D-08-907860 directing the applicant's discharge from the U.S. Army Reserve with a character of service of under other than honorable conditions.

14.  Chapter 7 of National Guard Regulation 600-200 prescribes procedures for the separation of enlisted personnel from the ARNG.  Paragraph 7-8, in effect at the time, stated that the State Adjutant General is responsible for making a continuous and willful absence determination.  Furthermore, a notification of discharge may be either actual or constructive.  Actual notice involves personal delivery of the discharge certificate to the individual.  A constructive notice is accomplished when actual delivery cannot be accomplished due to the absence of the individual being discharged.  When personal delivery cannot be accomplished, the NGB Form 22 will be mailed to the individual's last known address.

15.  National Guard Regulation 600-200 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.

16.  National Guard Regulation 600-200 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 contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The applicant was required to attend all scheduled UTA/MUTA's and annual training periods.  He chose not to.  According to the notification letters and as the applicant was aware, he was advised that if he accumulated nine unexcused absences within 1 year he could be declared an unsatisfactory participant.

3.  The evidence of record shows he was absent from scheduled UTA/MUTA's on multiple occasions.  In each instance, he was notified in writing and he either ignored or acknowledged the notification letter.  After having accrued 10 unexcused absences, his immediate commander declared him an unsatisfactory participant and requested his discharge from the ARNG for unsatisfactory participation.  The separation authority approved the request and he was discharged on 18 November 1982 and transferred to the U.S. Army Reserve Control Group in accordance with regulatory guidance.

4.  The applicant was 17 years and 5 months at the time he enlisted in the ARNG; however, he was 21 years of age or more when he chose not to report for training.  There is no indication his unexcused absence was a result of his age.

5.  Based on his record of indiscipline, particularly his failure to attend UTA/MUTA's, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  As a member of the ARNG, the applicant was required to attend all UTA/MUTA's and annual training periods.  The evidence of record shows he did not do so.  He received the appropriate character of service.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20100019482



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ABCMR Record of Proceedings (cont)                                         AR20100019482



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