BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120005787 


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 his rank/grade of specialist five (SP5)/E-5 in the U.S. Army Reserve (USAR) be restored.  

2.  The applicant states he was demoted to private first class (PFC)/E-3 in a Reserve unit that he was not sworn into.  He believes he was demoted wrongfully.  He served in the Regular Army from April 1969 to April 1971 and he served 1-year in the Army National Guard (ARNG).  He also went to summer camp 1 year later and completed all of his active and inactive service.  His unit had a recruiting drive and called him to sign up.  He was not issued uniforms and it would have been a hardship on him to participate in drills.  He worked swing shift every weekend at the time.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Certificate of Graduation
* DD Form 44 (Record of Military Status of Registrant)
* 1972 and 1974 Honorable Discharge Certificates
* Certificate of Appreciation

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 inducted into the Army of the United States on 25 April 1969 and he held military occupational specialty 11E (Armor Crewman).  He served in Germany from 21 October 1969 to 19 April 1971.  He was assigned to the 3rd Squadron, 12th Cavalry, 3rd Armored Division.

3.  On 30 November 1971, Headquarters, 3rd Armored Division, published Special Orders Number 334 appointing him to the temporary rank/grade of SP5/E-5, effective 6 November 1970.

4.  He was honorably released from active duty on 20 April 1971 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.  His DD Form 214 listed his rank and grade as SP5/E-5.

5.  He enlisted in the ARNG in the rank/grade of SP5/E-5 for a period of 1 year on 10 June 1971.  He was assigned to Headquarters and Headquarters Company, 560th Engineer Battalion, Columbus, GA.

6.  He was discharged from the ARNG in the rank/grade of SP5/E-5 on 9 June 1972 and he was transferred to the USAR Control Group (Standby Reserve) to complete his remaining service obligation.  

7.  On 10 April 1974, Office of the Adjutant General, USAR Components Personnel and Administration Center, St. Louis, MO, published Letter Orders Number 040378 transferring him from the USAR Control Group (Annual Training) to the USAR Control Group (Standby Reserve) effective 25 April 1974.

8.  On 5 June 1974, Office of the Adjutant General, USAR Components Personnel and Administration Center, St. Louis, MO, published Letter Orders Number 06-306252 transferring him from the USAR Control Group (Standby Reserve) to the 803rd General Support Company, 375th Field Deport, Opelika, Alabama, effective 1 June 1974.

9.  On 10 November 1974, by certified letters, he was notified that after having incurred a statutory obligation pursuant to Title 10, U.S. Code, section 270 to participate in not less than 48 scheduled unit training assemblies/multiple training assemblies (UTA/MUTA) and to perform no less than 14 days of annual training, he failed to attend scheduled UTA/MUTA in August and September 1974.  

10.  On 13 November 1974, his unit commander initiated a Request for Assignment and Attachment of USAR Request to the Commander, First U.S. Army.  The immediate commander requested the applicant's reassignment to the USAR Control Group (Annual Training) for failure to attend training assemblies.  The commander stated the applicant had not attended drills since being assigned to the Control Group.

11.  On 10 December 1974, Headquarters, First U.S. Army, Fort Meade, MD, published Letter Order Number 12-208 reassigning him the USAR Control Group (Standby Reserve) in the rank/grade of PFC/E-3 effective 13 November 1974.

12.  He was ultimately discharged from the USAR in the rank of PFC on 13 November 1974.

13.  Army Regulation 135-178 (Separation of Enlisted Personnel) 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  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 he was aware that if he accumulated a certain number of unexcused absences within 1 year he could be declared an unsatisfactory participant.

2.  The available evidence shows he was absent from scheduled UTA's or MUTA's on multiple occasions and he was notified in writing of his absence.  Accordingly, subsequent to his history of unexcused absence his immediate commander requested that he be released from the USAR for unsatisfactory participation.  

3.  He was reduced to PFC and released and transferred to the USAR Control Group (Annual Training) in accordance with regulatory guidance, on 13 November 1974.  He was ultimately discharged from the USAR in the rank/grade of PFC/E-3 on 13 November 1974.

4.  There is no evidence of record and he did not provide convincing evidence which shows he encountered a job-related conflict 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.

5.  In the absence of evidence to the contrary, it appears his reduction was appropriate and he provides no substantiating evidence to support his contention.  

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)                                         AR20120005787





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ABCMR Record of Proceedings (cont)                                         AR20120005787



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