IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120009492 


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 records to show he was medically discharged and issued a 15-Year Letter (Notification of Eligibility for Retired Pay at Age 60).

2.  He states he was relieved from Headquarters and Headquarters Company (HHC), 479th Engineer Battalion for unsatisfactory participation.  At the time, he was unable to work at his civilian place of employment due to an injury.  As a result, he was not able to perform his Reserve duties.  

3.  The applicant provides:

* reassignment orders 
* a letter, dated 5 July 1984
* a copy of a previous application to the Board, dated 13 September 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.  His record shows he enlisted in the U.S. Army Reserve (USAR) on 27 April 1967.  He continued to serve through a series of reenlistments and attained the grade of sergeant/E-5.  

3.  The applicant's record contains two Letters of Instruction – Unexcused Absence, dated 16 November 1982 and 11 October 1983.  

   a.  These letters were addressed to the applicant and state he was absent from the scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTA) on the following dates:

* 9 October 1982
* 10 October 1982
* 13 November 1982
* 14 November 1982
* 7 October 1983
* 8 October 1983
* 9 October 1983

   b.  Paragraph 2 informed him that under the provisions 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.  
   
   c.  Paragraph 7 informed him if he accumulated nine unexcused absences within a one-year period, he could be declared an unsatisfactory participant.  

4.  Two U.S. Postal Service forms show he acknowledged receipt of the letters on 18 November 1982 and 14 October 1983. 

5.  On 11 October 1983, his commander recommended the applicant be involuntarily transferred to the USAR Control Group (Reinforcement) for unsatisfactory participation.  The commander determined there wasn't a cogent reason which prevented the applicant from attending the training assembly which resulted in the ninth unexcused absence.  He further stated that the applicant's disregard for attendance procedures led to five unexcused absences in October.  He personally contacted the applicant on 11 October and his excuse for non-attendance was not acceptable as stipulated in Army Regulation 135-91.  The commander also noted the applicant's medical records were not on file at the unit.  

6.  He provided Orders 174-62, dated 28 November 1983.  These orders show he was reassigned to the USAR Control Group (Reinforcement) for unsatisfactory participation on 28 November 1983. 

7.  The applicant also provided a letter from the New York Air Brake Company, dated 5 July 1984.  This letter shows he was out of work due to an occupational injury from 1 November 1983 to 5 December 1983 and from 7 December 1983 to 9 January 1984.  He wasn't to engage in any activity during these periods.  

8.  His military medical records are not available for the Board's review; neither does his record contain the results of a line of duty investigation as it pertained to his on-the-job injury.  The facts and circumstances which led to his unsatisfactory participation are not available for review. 

9.  Army Regulation 135-91 states, in part, that Troop Program Unit (TPU) Soldiers are required to participate in at least 48 scheduled inactive duty trainings (IDTs), and not less than 14 days of annual training.  Satisfactory participation is defined as attending all scheduled IDTs unless excused by the unit commander or granted a leave of absence.  Soldiers who do not receive credit for attendance will be charged with an unexcused absence.  

   a.  Additionally, a Soldier may be excused from scheduled IDT or active training when sickness, injury, or some other circumstance beyond the Soldier's control caused the absence.  All other situations not specifically identified are considered unexcused absences.  A Soldier excused for a reason cited above may be required to document the reason for the absence.  If the unit commander requires this evidence, the Soldier will normally be notified within 14 days of the absence.  
   
   b.  Evidence submitted by the Soldier will be in the form of an affidavit when the absence was beyond the Soldier's control.  Absence caused by sickness or injury requires certification from a physician or medical officer.  The Soldier must furnish the required evidence within 15 days of the commander's request.  At the discretion of the appropriate commander, a Soldier may be scheduled to make up the excused absence.
   
   c.  Unsatisfactory participation is defined as (1) when ordered to active training if, without proper authority, the Soldier fails to attend or complete the 


   entire period of active training; and (2) if required to attend 48 IDTs Soldiers accrue 9 or more unexcused absences in any 1-year period. 

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers – Army Reserve) provides for involuntary reassignment for unsatisfactory participation.  It states a TPU or Individual Mobilization Augmentee Soldier who has completed initial entry training and been awarded an MOS and is not within 3 months of expiration of term of service, who fails to participate satisfactorily may be reassigned to the appropriate control group of the IRR. Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings per Army Regulation 135-178 (Enlisted Administrative Separations), chapter 13, when determined to be in the best interest of the Army.  Commanders will not take reassignment action under this paragraph solely to spare a Soldier from administrative separation proceedings for other than unsatisfactory participation per Army Regulation 135-178.

11.  Public Law 103-337, dated 5 October 1994, established early reserve retirement eligibility for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through      30 September 1999.  Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  Title 10, U. S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on 23 October 1992 and ending on    1 October 1999 to soldiers who attained 15 years of retirement eligibility after      1 October 1991.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it does not appear that the applicant is eligible for a 15-year retirement.  The law that authorizes a 15-year retirement for Reserve members specifically applies only to members with physical disabilities not incurred in line of duty after 23October 1992.  The applicant was transferred on 28 November 1983, which was 15 years prior to the effective date of the law.  

2.  There is no evidence and he did not provide any to show that his release from his Reserve unit for “Unsatisfactory Participation” was in error.  

3.  In view of the foregoing, he is not entitled to 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)                                         AR20120009492





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ABCMR Record of Proceedings (cont)                                         AR20120009492



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