IN THE CASE OF:	  

		BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20110022910 


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, correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show:

* the characterization of his service was upgraded from under other than honorable conditions (UOTHC) to honorable; and
* change his reentry (RE) code of "4" to a code that will allow him to reenter the military

2.  The applicant states he was not aware of the rule that required him to return to his unit if he did not go on active duty within 90 days.  He states he was under the impression that once he cleared his unit he was out of the Army National Guard (ARNG).  

3.  The applicant provides the following documents in support of his application:

* Self-Authored letters
* Commander’s letter, dated 17 May 2002
* Clearance Checklist, dated 14 May 2002
* Award letter, dated 16 November 2003
* DD Forms 214 (Certificates of Release or Discharge from Active Duty), dated 11 April 1989 and 6 November 1999
* NGB Form 22, dated 5 May 2009 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that after completing a total of 7 years, 
10 months, and 13 days of active military service during two separate enlistments in the Regular Army, he enlisted in the ARNG on 21 March 2001.  

2.  The record shows that between 6 November 2004 and 6 February 2005, the applicant accrued in excess of 12 unexcused absences from unit training assemblies on 6-7 November 2004, 8-9 January 2005, and 4-6 February 2005.  

3.  On 14 February 2005, the unit commander notified the applicant of his intent to initiate action to separate the applicant under the provisions of chapter 13, Army Regulation 135-178 (Personnel Separations), by reason of unsatisfactory participation.  He further informed the applicant he was recommending he receive a UOTHC discharge.  The applicant was also informed he was required to acknowledge notification and complete an enclosed election of rights within 
30 days of date of receipt of the notification.  

4.  The unit personnel administrator completed an affidavit confirming he mailed the applicant's separation notification to the applicant’s last known address on 
14 February 2005.  The applicant failed to respond to the notification. 

5.  On 25 April 2005, the separation authority approved the applicant’s discharge from the ARNG and as a Reserve of the Army for unsatisfactory participation, directed reduction to the lowest enlisted grade, and the issuance of a UOTHC discharge. 

6.  The NGB Form 22 issued to the applicant on 9 May 2005 upon discharge from the ARNG shows he was separated under the provisions of paragraph
8-27f, National Guard Regulation (NGR) 600-200 (Enlisted Management), paragraph 8-27f, by reason of unsatisfactory participation.  It further shows he was assigned an RE code of "4" based on the authority and reason for discharge. 

7.  On 20 November 2009, the Army Discharge Review Board after carefully considering the applicant’s entire military record and all other available evidence determined the applicant’s discharge was proper and equitable and voted not to upgrade the characterization of his service and not to change his authority and reason for discharge.  

8.  Army Regulation 135-178 (Enlisted Administrative Separations) governs procedures covering enlisted personnel management of the Army Reserve. Chapter 8 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the USAR.  Paragraph 13-1 of that regulation provides in pertinent part that individuals can be separated for being an unsatisfactory participant.  Army Regulation 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1 year period.  Army policy states that a UOTHC discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

9.  NGR 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of the ARNG and the Army National Guard of the United States (ARNGUS) enlisted Soldiers.  Paragraph 6-35 (Separation/Discharge from State ARNG and/or Reserve of the Army) contains guidance on RE code assignment based on reason and authority for discharge.  For members separated as an unsatisfactory participant, it states, in pertinent part, that an RE code of "3" will be assigned. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to upgrade his UOTHC discharge from the ARNG and to change his RE code of "4" has been carefully considered and found to have partial merit.  

2.  By regulation, an RE code of "3" is the proper code to assign members separated as an unsatisfactory participant.  Therefore, it would be appropriate to correct the applicant’s NGB Form 22 accordingly.  

3.  However, the evidence of record confirms the applicant was appropriately processed for separation as an unsatisfactory participant after he accrued in excess of 12 unexcused absences in less than 12 months, and failed to respond to the units repeated efforts to contact him.  His separation processing was accomplished in accordance with applicable regulations and his rights were fully protected throughout the separation process.  

4.  Further, the applicant’s honorable active duty service was appropriately recognized in the honorable service characterizations documented in the 
DD Forms 214 he was issued for his two separate periods of active service.  As a result, given a UOTHC discharge is normally appropriate for members separated as unsatisfactory participants, absent any evidence of error or injustice related to his separation processing from the ARNG there is an insufficient evidentiary basis to support an upgrade of his 2005 UOTHC discharge from the ARNG.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends the ARNG correct the applicant’s NGB Form 22 by changing his RE code of "4" to an RE code of "3."

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his UOTHC discharge.  



      _______ _   _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)                                         AR20110022910



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ABCMR Record of Proceedings (cont)                                         AR20110022910



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