IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20110001290 


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, in effect, an upgrade of the under other than honorable conditions discharge that he received from the U.S. Army Reserve (USAR).

2.  The applicant states he was a good Soldier.  He respected his commander and performed his duties to the fullest.  His duty station was in Pompano, FL, and he lived in Miami, FL, over an hour away.  His car broke down and it was expensive for him to ride the bus or rail.  

3.  The applicant provides a copy of his state driver license.

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 enlisted in the USAR on 13 July 1979.  He entered active duty for training (ADT) on 20 July 1979, completed the training requirements, and he was awarded military occupational specialty 13B (Cannon Crewman).  He was honorably released from ADT on 19 October 1979 and assigned to the 7th Battalion, 9th Field Artillery, Pompano Beach, FL.

3.  Between September 1981 and June 1982 the applicant was absent from scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTAs).

4.  On 30 September and 9 October 1981 and 5 April and 8 June 1982, by certified/registered mail, the applicant's immediate commander notified him that he was absent from the scheduled UTA/MUTA for the scheduled period.  In each letter, he also advised that he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant.  In each case, he was also provided an opportunity to explain and/or provide justification for the unexcused periods.  The certified mail receipts show the applicant received and accepted delivery of these letters but he failed to respond.

5.  On 24 June 1982, Headquarters, 7th Battalion, 9th Field Artillery, published Orders 6-8 reducing the applicant from specialist/E-4 to private first class (PFC)/E-3. 

6.  On 20 July 1982, after having accumulated nine unexcused absences, his immediate commander initiated separation action against him under the provisions of chapter 7 of Army Regulation 135-178 (Separation of Enlisted Personnel) by reason of misconduct - unsatisfactory participation.

7.  On 29 July 1982, his senior commander reviewed the separation packet and recommended approval.

8.  Headquarters, 81st U.S. Army Reserve Command, East Point, GA, Orders 163-15, dated 30 August 1982, show the applicant was reduced to the lowest enlisted grade and reassigned to the USAR Control Group (Annual Training) due to unsatisfactory participation effective 10 August 1982.

9.  USAR Personnel Center, St. Louis, MO, Orders Number D-09-980458, dated 7 September 1985, show the applicant was separated from the USAR (Ready) with an under other than honorable conditions discharge, effective the same date. 


10.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States and USAR enlisted Soldiers for a variety of reasons.  Chapter 7 of the regulation in effect at the time governed separation for misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  An honorable characterization of service is not authorized for a member who is no longer in an entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate.

11.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a 1 year period.

12.  Army Regulation 135-178 states the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when a significant negative aspect of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge from the USAR should be upgraded.

2.  There is no evidence of record and the applicant did not provide convincing evidence which shows he encountered problems with his car while serving in his USAR unit.  Furthermore, there is no evidence that he raised this issue with his chain of command or with any available source that may have been able to assist him in resolving this issue.

3.  The applicant was required to attend all scheduled unit training assemblies and annual training periods.  It appears he chose not to do so.  According to the available evidence the applicant was aware that if he accumulated nine unexcused absences within 1 year he could be declared an unsatisfactory participant.

4.  The available evidence shows the applicant was absent from scheduled UTA's or MUTA's on multiple occasions.  In each instance, he was notified in writing and he acknowledged the notification.  Accordingly, subsequent to his history of unexcused absence his immediate commander requested that he be released from the USAR for unsatisfactory participation.  The separation authority approved the request and the applicant was released and transferred to the USAR Control Group (Annual Training) in accordance with regulatory guidance on 10 August 1982.  The applicant was separated from the USAR (Ready), effective 7 September 1985 with an under other than honorable conditions discharge.

5.  Based on his failure to attend unit drills the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  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)                                         AR20110001290



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ABCMR Record of Proceedings (cont)                                         AR20110001290



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