IN THE CASE OF: 

		BOARD DATE:	    3 January 2013

		DOCKET NUMBER:  AR20120011087 


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 an upgrade of his discharge under other than honorable conditions to general under honorable conditions and a copy of his service records.

2.  The applicant states he completed both basic combat and advanced individual training and then returned to his parent unit.  He earned his general education degree in Delaware prior to attempting to enlist in the Regular Army.  He has matured since his time in the military.  He is facing the possibility of unemployment which would prevent him from providing for his family and purchasing medication.  He may lose his family.  In addition, his characterization of discharge creates a stigma.  He has completed Alcoholics Anonymous substance abuse classes and an anger management course.

3.  The applicant provides two certificates.

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 ABCMR corrects records; however, the Board is not the custodian of military records and therefore does not provide copies of military records.  Any questions or concerns regarding the applicant's military records should be referred to the appropriate agency.  For Army personnel, requests for official copies of military records should be directed to the National Personnel Records Center (NPRC).  Written requests may be addressed to the National Personnel Records Center, 1 Archives Drive, St. Louis, MO  63138.  Therefore, the issue of military records will not be discussed further in this Record of Proceedings.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 26 January 1980 for a period of 6 years.

4.  He entered active duty for training (ADT) on 17 April 1980.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was assigned to Fort Lee, VA, for advanced individual training (AIT).

5.  His record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice while attending AIT on two separate occasions:

* on 15 May 1980, for failing to be at his appointed place of duty
* on 27 May 1980, for disorderly behavior

6.  On 30 June 1980, he was honorably released from ADT.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that upon his release from active duty he was transferred to Company B, 1st Battalion, 385th Regiment, 76th Division, Windsor, CT.

7.  His record contains a Forces Command (FORSCOM) Form 265R (Conditional Release), dated 1 September 1981, which was delivered to the applicant by certified mail on 8 September 1981.  This form states he had been granted a 
90-day conditional release from his USAR unit because he had changed his residence.  He was directed to either find a new USAR unit at his new location or, if he wished, enlist in another component by 1 December 1981.

8.  His company commander prepared a memorandum for record, dated 12 February 1982, wherein he stated the applicant "was furnished a Conditional Release Form FORSCOM 265R, which was [receipted] for at his home in Delaware; however, he was provided an envelope in which to return a signed and completed copy.  He has failed to do so.  He did not comply with the requirement for [the] 90-day letter."

9.  His record contains a memorandum for record, dated 18 March 1982, prepared by an official at his unit which stated a telephone call had been received from Staff Sergeant (SSG) A____ M____ of the Hartford recruiting office.  SSG A____ M____ stated the applicant has attempted to enlist in the Regular Army.  SSG A____ M____ requested a waiver for the applicant; however, the waiver had been denied.  The reason for denial was not given.  The applicant has been a problem for this unit ever since he was assigned and did not come to drills (training assemblies) before he moved to Delaware.  He was furnished a 90-day letter to enable him to find a new unit in Delaware; however, he failed to find a new unit or to contact his current unit to inform them of his inability to reenlist or find a new unit even though SSG A____ M____ advised him thusly.

10.  His unit sent him his annual training orders, dated 17 May 1982, by certified mail.  The orders were returned to his unit because he had moved and left no forwarding address.

11.  His unit sent him a notice of unsatisfactory participation, dated 13 July 1982, by certified mail on 16 June 1982 and 30 June 1982.  Both notices were returned to his unit because he had moved and left no forwarding address.  The notice stated he was being charged with a failure to locate and join a Reserve Component unit.  The notice further stated he was required to acknowledge receipt/respond by 29 July 1982.  The notice advised that a failure to respond and request consideration by an administrative separation board would be considered a waiver of that right.

12.  Orders 128-4 issued by Headquarters, 76th Division, Hartford, CT, on 20 September 1982 reassigned him to the USAR Control Group (Annual Training) due to unsatisfactory participation.  The additional instructions stated his service had been characterized as under other than honorable conditions.

13.  Orders D-02-095364 issued by the USAR Personnel Center, St. Louis, MO, on 19 February 1986 ordered his discharge under other than honorable conditions from the USAR Control Group (Annual Training) effective 19 February 1986.

14.  Army Regulation 135-178 (Enlisted Administrative Separations) 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, in effect at the time, governed separation for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority might direct a general discharge if such were merited by the Soldier's overall record.  An honorable characterization of service was not authorized for a member who was no longer in an entry-level status unless the member's record was otherwise so meritorious that any other characterization would clearly be inappropriate.

15.  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 and he was required to find a new Reserve unit in Delaware.  It appears he chose not to do so.  According to the available evidence, the applicant was aware of his obligations and to continually disregard those obligations could be declared as unsatisfactory participation.

2.  The available evidence shows the applicant was absent from scheduled training on multiple occasions.  Accordingly, subsequent to his history of unexcused absence and failure to locate and join a Reserve Component unit, his immediate commander requested his release from the USAR for unsatisfactory participation.  The separation authority approved the request and the applicant was released and transferred to the USAR Control Group (Annual Training) in accordance with regulatory guidance on 20September 1982.  The applicant was discharged under other than honorable conditions from the USAR effective 19 February 1986.

3.  Based on his failure to attend unit drills, locate a new unit within the 90-day window, respond to certified mail or provide a forwarding address, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge.


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 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)                                         AR20120011087



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ABCMR Record of Proceedings (cont)                                         AR20120011087



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