BOARD DATE:	6 December 2011

		DOCKET NUMBER:  AR20110008609


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 an upgrade of his discharge characterization, from under other than honorable conditions to honorable, and upgrade of his reentry eligibility (RE) code, from RE-3 to RE-1.

2.  The applicant states:

* he was never informed he had accrued unexcused absences from his unit
* he was never informed such absences had led to the initiation of an involuntary transfer action
* he had been previously informed by his commander that he could end his military career; therefore, he relied on his commander's representations
* he defers to counsel for further explanation

3.  The applicant defers to counsel for submitted evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect:

* upgrade of the applicant's discharge characterization, from under other than honorable conditions to honorable 
* upgrade of the applicant's RE code, from RE-3 to RE-1



2.  Counsel states 3 main points related to the applicant's request for relief:

   a. The applicant was never informed of his unexcused absences from his unit, or that his commander was initiating involuntary transfer action against him as a result of those unexcused absences.

   b. The failure to properly notify the applicant of unexcused absences violated Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).

   c. The applicant's dental skills are needed, as the Missouri Army National Guard (MOARNG) is facing an extreme shortage of skilled dental officers.

3.  Counsel provides:

* Honorable Discharge Certificate, U.S. Navy, dated 14 November 1977
* extract of DA Form 61 (Application for Appointment), dated 21 July 1980
* DD Form 398 (Statement of Personal History), dated 21 July 1980
* appointment letter, U.S. Army Reserve Components Personnel and Administration Center (RCPAC), St. Louis, MO, dated 20 November 1980 
* Orders 29-10, Headquarters, 102nd U.S. Army Reserve (USAR) Command, St. Louis, MO, dated 7 April 1981
* diploma, Doctor of Dental Surgery, University of Missouri, dated 8 May 1981
* memorandum, Army Medical Department (AMEDD) Procurement Field Office, Kansas City, MO, dated 23 June 1981
* appointment letter, RCPAC, St. Louis, MO, dated 29 December 1981
* DA Form 67-8 (U.S. Army Officer Evaluation Report (OER)), for the period 1 April 1981 through 31 March 1982
* DA Form 67-8 (page 2), covering the period 7 June 1982 – 18 June 1982
* DA Form 67-8 (page 1), covering the period 1 April 1982 – 31 March 1983
* DA Form 67-8 (page 2), covering the period 1 April 1983 – 14 October 1983
* letter, 486th Medical Detachment, Kansas City, MO, dated 1 July 1983,  subject: Letter of Instructions – Unexcused Absence(s)
* letter, 486th Medical Detachment, Kansas City, MO, dated 19 July 1983, subject: Letter of Instructions – Unexcused Absence(s)
* letter, 486th Medical Detachment, Kansas City, MO, dated 11 August 1983, subject: Letter of Instructions – Unexcused Absence(s)
* letter, 486th Medical Detachment, Kansas City, MO, dated 18 August 1983, subject: Notice of Unsatisfactory Participation Under Army Regulation 135-91 and Separation Action Under Army Regulation 135-175 (Separation of Officers)
* letter, 486th Medical Detachment, Kansas City, MO, 18 August 1983, subject: Unit Commander's Statement
* AGUZ Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 19 August 1983
* endorsement, Headquarters, 102nd USAR Command, St. Louis, MO, dated 30 November 1983, subject: Recommendation for Elimination Action
* Orders 127-7, Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, dated 1 July 1985
* Request Pertaining to Military Records, dated 9 June 2010
* National Guard Bureau (NGB) Form 62E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States)
* memorandum from the applicant to the AMEDD Accession Board
* memorandum for record
* statement, dated 22 February 2011
* memorandum, 27th Recruiting and Retention Battalion, MOARNG, dated 25 February 2011
* 2 separate emails, each dated 9 March 2011

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 requested an upgrade of his RE code, from RE-3 to RE-1.  His discharge order does not contain an RE code, as RE codes are only applicable to enlisted Soldiers; therefore, there is no necessary correction and this portion of the applicant's request will not be discussed further in these Proceedings. 

3.  Having had prior service in the U.S. Navy, the applicant was appointed as a Reserve Commissioned Officer of the Army, in the Medical Services Corps and in the rank/grade of second lieutenant, on 4 December 1980.  
4.  On 8 May 1981, he was awarded a Doctor of Dental Surgery degree from the University of Missouri.   

5.  On 11 September 1981, he was appointed as a Reserve Commissioned Officer of the Army, in the Dental Corps and in the rank/grade of first lieutenant.  

6.  On 25 and 26 June 1983, he was absent from his scheduled multiple unit training assemblies (MUTAs).  On 1 July 1983, his immediate commander notified him via certified mail that he had accrued 4 unexcused absences for failing to attend the scheduled MUTAs, a cumulative total of 4 unexcused absences within a one-year period.  In the notification letter, he was advised that the accumulation of 9 unexcused absences within a one-year period could result in him being declared an unsatisfactory participant.  He was also provided an opportunity to explain and/or provide justification for the unexcused periods.  The Postal Service (PS) Form 3811 (Return Receipt, Registered, Insured and Certified Mail) that accompanied the PS Form 3800 (Receipt for Certified Mail) and the notification letter indicates the letter was delivered and signed for on     12 July 1983; however, there is no indication that the applicant responded.   

7.  On 16 and 17 July 1983, he was absent from his scheduled MUTAs.  On      19 July 1983, his immediate commander notified him via certified mail that he had accrued 4 unexcused absences for failing to attend the scheduled MUTAs, a cumulative total of 8 unexcused absences within a one-year period.  In the notification letter, he was advised that the accumulation of 9 unexcused absences within a one-year period could result in him being declared an unsatisfactory participant.  He was also provided an opportunity to explain and/or provide justification for the unexcused periods.  The PS Form 3811 that accompanied the PS Form 3800 and the notification letter indicates the letter was returned as unclaimed.   

8.  On 11 August 1983, he was absent from his scheduled unit training assembly (UTA).  On 11 August 1983, his immediate commander notified him via certified mail that he had accrued 4 unexcused absences for failing to attend the scheduled MUTAs, a cumulative total of 9 unexcused absences within a one-year period.  In the notification letter, he was advised that the accumulation of 
9 unexcused absences within a one-year period could result in him being declared an unsatisfactory participant.  He was also provided an opportunity to explain and/or provide justification for the unexcused periods.  The PS Form 3811 that accompanied the PS Form 3800 and the notification letter indicates the letter was delivered and signed for on 16 August 1983.   

9.  On 18 August 1983, the applicant's immediate commander notified him via certified mail that he had declared him an unsatisfactory participant.  The applicant's immediate commander informed him that he was initiating action to separate him in accordance with Army Regulation 135-175.  

10.  On 19 August 1983, the applicant's immediate commander initiated separation action against him as an unsatisfactory participant.  On 30 November 1983, the separation authority endorsed the immediate commander's recommendation for separation action.  

11.  On 1 July 1985, the applicant was discharged from the USAR and given an under honorable conditions characterization of service.  

12.  In a 4-page letter to the Board, the applicant's counsel contends that:

   a. Sometime in the spring of 1983, the applicant's immediate commander informed him that the unit was relocating from Kansas City, MO to Fort Leavenworth, KS.  The applicant's immediate commander gave him the choice to either remain in the USAR and continuing attending scheduled UTA/MUTAs at Fort Leavenworth, or end his military service obligation.  Counsel contends the applicant informed his immediate commander that he elected to end his military service obligation.  Counsel contends that further action on the immediate commander's part to classify the applicant's service as anything other than honorable is unfair, given the previous arrangements that were discussed vis-à-vis ending the applicant's military service.

   b. The applicant never received any documentation from his unit that he was absent from his scheduled UTA/MUTAs, in direct violation of Army Regulation 135-91; therefore, his discharge action was fundamentally unfair and unjust.  

   c. The applicant should be granted relief because his professional services are desired and needed by the MOARNG.  

13.  Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  Paragraph 2-12 provides for the discharge of officers for moral or professional dereliction.  It states that officers who demonstrate intentional neglect or failure to participate satisfactorily in required Ready Reserve training are subject to elimination proceedings.  Officers discharged under this provision could be furnished an Honorable, General, or Other Than Honorable Discharge Certificate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his characterization of service.  The evidence of record shows the applicant was absent from at least nine scheduled UTA/MUTAs.  In each instance, he was appropriately notified, via certified mail, and provided an opportunity to request excusal or rescheduled training.  His signature appears on at least one of the three certified mail receipts, indicating he was aware of the ramifications of his unexcused absences.  There is no indication he took any action to reconcile his unexcused absences with his immediate commander.

2.  In the absence of evidence to the contrary, it is presumed that his discharge was processed in accordance with the governing regulation in effect at the time.  He has provided no evidence to show he was discharged in error; therefore, there is no basis to grant an upgrade in his discharge characterization.  

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)                                         AR20110002891



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008609



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1