BOARD DATE: 13 November 2012
DOCKET NUMBER: AR20120007865
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 that his general discharge be upgraded to an honorable discharge.
2. The applicant states that he was unjustly discharged from the United States Army Reserve (USAR) without his acknowledgement. He goes on to state that he was in a life-threatening car accident. He also states that he drilled and reported the accident to his unit and found another unit closer to his residence; however, his chain of command did not approve the move and discharged him.
3. The applicant provides copies of email traffic between the applicant and members of his unit.
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 applicants 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 applicants failure to
timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the USAR on 20 July 2000 for a period of 8 years and training as an automated logistics specialist. He completed his training at Fort Lee, Virginia and was transferred to his USAR unit in New York.
3. He was subsequently transferred to the USAR Control Group (Reinforcement) and on 11 August 2006 he was transferred to a troop program unit (TPU) in Decatur, Georgia.
4. On 14 May 2007 he was transferred to the USAR Control (Standby) due to overseas employment. On 1 November 2007 he was again transferred to a TPU in Decatur, Georgia.
5. The facts and circumstances surrounding the applicants administrative discharge are not present in the available records. However, his records show that he was discharged under honorable conditions on 15 March 2011 for unsatisfactory participation under the provisions of Army Regulation 135-178. Additionally, the emails provided by the applicant show that his commander notified him that he had 20 unauthorized absences and only 9 unauthorized absence were required for discharge.
6. On 15 March 2011 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 23 January 2012 the ADRB determined that given the available evidence, his discharge was both proper and equitable and voted unanimously to deny his request.
7. Army Regulation 135-178, in effect at the time, set forth the basic authority for the separation of USAR and Army National Guard personnel. Chapter 6 of that regulation provides for the separation of personnel because of unsatisfactory performance. It provides that the service of a Soldier separated under this chapter will be characterized as honorable or general, under honorable conditions as warranted by his or her military record.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights. Accordingly, the type of discharge directed and the
reasons therefore were appropriate considering all of the available facts of the case.
2. The applicant's contentions and supporting documents have been considered. However, given the repeated nature of his unauthorized absences during his period of service, they are not sufficiently mitigating to warrant an upgrade of his discharge. His service simply does not rise to the level of a fully honorable discharge.
3. The applicant had a responsibility to keep his unit notified and to provide the necessary documentation to support his absences. He also had a responsibility to ensure that his absence were excused and he has not provided evidence to show that such was the case.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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) AR20120007865
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