IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110010476 


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, that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  He states, in effect, he was a good Soldier and completed his required service obligation.  He was late for his weekend drill prior to his Expiration Term of Service (ETS) date, but he made up the time. 

3.  He provides:

* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* His discharge orders

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 record shows he enlisted in the U.S. Army Reserve (USAR) on 22 March 1979 for 6 years.  On 9 July 1979, he reported to Fort Jackson, SC for basic combat training and upon completion of training he was released to his Reserve unit on 31 August 1979.

3.  On 14 March 1980, he reported to Fort Benning, GA for advanced individual training (AIT) and upon completion of AIT he was awarded the military occupational specialty 11B (Infantryman).  He was honorably released from active duty for training and returned to his Reserve unit on 7 May 1980.

4.  The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows the highest grade he attained while serving in the USAR was specialist four, E-4.  This form does not show he received any significant awards or special recognition.

5.  The applicant's record is void of the circumstances surrounding his unexcused absences; however, the Commander, Company A, 3rd Battalion, 18th Infantry notified the applicant by certified mail that the unit's records showed he had been absent from scheduled Unit Training Assemblies (UTA) on 2 August 1981, 
13 December 1981, 22 and 23 May 1982, and 12 and 13 June 1982.  As a result, he was charged with having 12 unexcused absences within a 1-year period.  

6.  He was also notified that he had been declared an unsatisfactory participant and that the commander was initiating action to separate him from the USAR under the provisions of Chapter 7, Army Regulation 135-178 (Separation of Enlisted Personnel), Section VII, for misconduct, by reason of unsatisfactory participation. 

7.  He was also advised that under the provision of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) he was required to attend all scheduled UTAs and annual training periods.  

8.  The applicant was further advised that the commander was suspending the action for 45 days to give him an opportunity to consult with counsel, appear and present his case before an administrative separation board, to be represented at a hearing by appointed counsel, submit a statement in his own behalf, and to waive his rights in writing.  

9.  He was also notified that if his service was characterized as less than honorable he could expect to encounter substantial prejudice in civilian life.  He was also advised that an acknowledgement to the letter was required by 
28 August 1982.

10.  On 7 October 1982, the applicant's unit commander recommended that he be considered for separation for misconduct under the provisions of Chapter 7, Army Regulation 135-178, Section VII, by reason of unsatisfactory participation.  The commander also recommended his service be characterized as under other than honorable conditions.

11.  The applicant's records contain Orders 108-17, dated 1 November 1982, which directed his release from Company A, 3rd Battalion, 18th Infantry, 187th Infantry Brigade (Separate), with an effective date of 1 November 1982.  He was reduced to the rank of private, pay grade E-2, and subsequently assigned to the USAR Control Group (Annual Training) by reason of unsatisfactory participation.  In the Additional Instructions of the order it was stated the applicant's service was characterized as under other than honorable conditions.

12.  The applicant provided a copy of Orders D-05-907371 discharging him from the USAR with an under other than honorable conditions discharge, effective
4 May 1985.

13.  Army Regulation 135-178 sets forth the policies, standards, and procedures for the orderly administrative separation of Army National Guard and Army Reserve enlisted Soldiers.  Chapter 7 provides for the separation of Soldiers when it is determined the Soldier is an unsatisfactory participant.  A Reserve Component Soldier who accrued 9 unexcused absences in a 1-year period was an unsatisfactory participant.  The regulation indicates that the characterization of service normally assigned to members separated under these provisions will be under other than honorable conditions; however, the separation authority may authorize a general or honorable discharge if it is warranted based on the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to honorable.  

2.  The evidence of record confirms the applicant accrued 12 recorded unexcused absences in a 1-year period and was accordingly declared an unsatisfactory participant by his unit commander.  There is no evidence to show he made the time up.

3.  As such, he was properly transferred to the USAR on 1 November 1982 by reason of unsatisfactory participation with a tentative characterization of service of under other than honorable conditions.

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  His unsatisfactory participation clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  

5.  Therefore, absent evidence of an error or injustice in the discharge process, there is an insufficient evidentiary basis to support granting 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)                                         AR20110010476



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ABCMR Record of Proceedings (cont)                                         AR20110010476



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