BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120012089 


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 reinstatement of his rank/grade in the Arkansas Army National Guard (ARARNG) to sergeant (SGT)/E-5.  In effect, he requests correction of his records to show he was discharged from the ARARNG in the rank/grade of SGT/E-5 vice private (PVT)/E-1.

2.  The applicant states, through his attorney in fact:

* he deployed to Iraq in October 2003 and returned in April 2005 after receiving the Purple Heart for injuries sustained in action on 24 April 2004
* at the time of his injury, his unit had been in theater for 1 month when they experienced a mortar attack that led to the loss of 4 Soldiers, one of whom was the applicant's roommate and best friend
* although he reenlisted in Iraq for 6 years, upon his return home, he suffered from post-traumatic stress disorder (PTSD)/traumatic brain injury (TBI) that was documented by the Department of Veterans Affairs (VA), which awarded him service-connected disability compensation in 2006
* his symptoms led to his inability to continue his service in the ARNG and he was ultimately discharged with a general characterization of service; he was also demoted to PVT/E-1
* the VA increased his disability compensation to 70 percent in 2007 and later to 90 percent
* had this situation not occurred, he would not have been an unsatisfactory participant 
* his record – after 10 years of service – is tarnished with this grade

3.  The applicant provides:

* Durable Power of Attorney
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Congressional correspondence

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 enlisted in the Regular Army on 30 August 1996 and he held military occupational specialty 75H (Personnel Services Specialist).  

3.  He was honorably released from active duty on 29 August 2000, at the completion of his required service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years of active service.

4.  He enlisted in the ARARNG on 25 February 2002.  He executed a 3-year extension of his ARNG enlistment on 23 February 2003.  He was ordered to active duty on 12 October 2003 and he was also promoted to SGT/E-5 on 12 October 2003.  

5.  He subsequently served in Kuwait/Iraq from 22 March 2004 to 10 March 2005.  While deployed, he executed a 6-year extension of his ARNG enlistment on 1 March 2005. 

6.  He was honorably released from active duty on 17 April 2005.

7.  During March and April 2007, the applicant was absent from the scheduled unit training assembly or multiple unit training assemblies, now known as battle assemblies (BA).
8.  On 5 March, 12 March, and 16 April 2007, the applicant's immediate commander notified him by certified/registered mail that he was absent from the scheduled BA's for the scheduled periods.

   a.  In each letter, the immediate commander also advised him that he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant.

	b.  In each case, he was also provided an opportunity to explain and/or provide justification for the unexcused periods.  He was advised that continued absence could result in separation or reassignment and, in each instance, a counseling form was initiated with an entry that his chain of command attempted to contact him, but there was no response.

	c.  The certified mail receipts show the applicant received and accepted delivery of these letters, but he failed to respond.

9.  On 5 February 2007, after missing the drill on 3 and 4 February 2007, the immediate commander initiated a memorandum advising him of his (the commander's intent) to initiate action recommending the battalion commander reduce him to specialist (SPC)/E-4.  The immediate commander advised the applicant of his rights. 

10.  On 16 April 2007, the immediate commander indicated the applicant had missed drills on 3 and 4 February 2007, 9, 10, and 11 March 2007, and 13, 14, and 15 April 2007; and that he (the applicant) was reported in an absent without leave (AWOL) status and had failed to notify the unit that he could not attend or provide an explanation. 

11.  By late April 2007, he had accrued 14 unexcused absences within a 1-year period.  His battalion commander initiated action to discharge him.  The battalion commander stated:

* the applicant had struggled with PTSD and alcoholism over the past year
* he (the battalion commander) counseled him and put him on a 30-day alcohol abuse recovery program and a mental health counseling program
* he made some progress but then he began missing drills with no excuse
* he and his spouse were counseled by the immediate commander on the consequences of missing drills
* he was abundantly clear of the process the unit would be forced to take if he continued this pattern
* numerous attempts were made by the chain of command to help him to no avail; he should be discharged
* the applicant just wanted to be discharged

12.  It appears after having accumulated over 9 unexcused absences, his chain of command initiated separation action against him under the provisions of chapter 13 of Army Regulation 135-178 (Enlisted Administrative Separations) by reason of unsatisfactory participation.  His battalion and brigade commanders recommended approval of the discharge action.  The separation authority approved the discharge action. 

13.  He was discharged on 15 April 2007.  His records contain: 

	a.  NGB Form 22 that shows he was discharged on 15 April 2007, in the rank/grade of PVT/E-1, in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-27f, as an unsatisfactory participant.

	b.  Orders 116-805, issued by the ARARNG on 26 April 2007 reducing him from SGT/E-5 to SPC/E-4, effective 15 April 2007, for inefficiency, in accordance with paragraph 7-49 of Army Regulation 600-8-19 (Enlisted Promotion and Reductions).

	c.  Orders 116-802, issued by the ARARNG on 26 April 2007 reducing him from SP4/E-4 to private first class (PFC)/E-3, effective 15 April 2007, for inefficiency, in accordance with paragraph 7-49 of Army Regulation 600-8-19.

	d.  Orders 116-803, issued by the ARARNG on 26 April 2007 reducing him from PFC/E-3 to private (PV2), effective 15 April 2007, for inefficiency, in accordance with paragraph 7-49 of Army Regulation 600-8-19.

	e.  Orders 116-804, issued by the ARARNG on 26 April 2007 reducing him from PVT/E-2 to PVT/E-1, effective 15 April 2007, for inefficiency, in accordance with paragraph 7-49 of Army Regulation 600-8-19.

14.  An advisory opinion was received from the NGB on 23 January 2013 in the processing of this case.  An NGB official recommended partial relief.  He stated the ARARNG only had authority to reduce the Soldier to SPC/E-4.  Therefore, he should be reinstated.  Secondly, in light of his identified medical conditions, the NGB would concur with a decision by the Board to grant full relief to reinstate his grade to E-5.  He added:

	a.  The applicant was reduced from E-5 to E-1 by consecutive orders published on 26 April 2007 by the ARARNG for inefficiency.  He was ultimately discharged on 15 April 2007 for inefficiency after having accrued 15 consecutive unexcused absences.  Paragraph 4-15 of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states a Soldier is an unsatisfactory participant when 9 or more unexcused absences from scheduled inactive duty training occur in a 
1-year period.  Additionally, Army Regulation 600-8-19 states in paragraph 10-17(b) a Soldier may be reduced one grade for unsatisfactory participation. 

	b.  The NGB recognizes that a large number of the unexcused absences were the direct result of the applicant having issues with PTSD, alcohol abuse, and suicidal tendencies.  It appears the State worked with him to address these issues to the point that the battalion commander personally escorted him to treatment.  His medical issues are well-documented and are the heart of the issue.

	c.  In light of his medical issues, it is in keeping with highest traditions of the Army and the ARNG that he be reinstated to SPC/E-4.  Additionally, in light of those medical issues, the NGB would concur with the Board granting him full relief in reinstating his original rank/grade to SGT/E-5.  The State also concurs with this recommendation. 

15.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

16.  His Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows he completed a total of 15 years, 8 months, and 1 day of qualifying service for non-regular retirement.

17.  Army Regulation 135-91 prescribes policies and procedures governing the various types of service obligations and participation requirements.  

	a.  Paragraph 3-1 states attending all scheduled IDTs is required unless excused by the unit commander or granted a leave of absence.  Soldiers who do not receive credit for attendance for any of the reasons noted above will be charged with an unexcused absence.

	b.  Paragraph 4-2 states the unit commander or acting commander is authorized to excuse absences and authorize equivalent training (ET).  This authority will not be further delegated.  State Adjutants General are authorized to grant exceptions to unexcused absences.  This authority may be delegated to commanders who are lieutenant colonel or higher.
	c.  Paragraph 4-12 states Soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any 1-year period a total of nine or more unexcused absences from scheduled IDTs or fail to obtain a unit of assignment during a leave of absence or fail to attend or complete annual training.  

18.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  

	a.  Paragraph 10-2 states the reduction authority for SPC/E-4 and below is the company, troop, battery, and separate detachment commanders, and for SGT/Staff Sergeant are field grade commanders of any organization authorized a lieutenant colonel or higher grade commander are the authority for reduction.   

	b.  Paragraph 10-17 states reductions under this paragraph are discretionary and wholly apart from discharge proceedings under Army Regulation 135–178, chapter 13, or reassignment under other regulations.  A Soldier may be reduced one grade for unsatisfactory participation.  The reduction authority for the grade concerned, or higher commander in the chain of command, may reduce the Soldier.  Reduction action is discretionary.  A commander may initiate reduction proceedings by presenting documentary evidence of unsatisfactory participation to the appropriate reduction authority.

19.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the U.S. Army Reserve.  

	a.  Paragraph 13-1 states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed by Army Regulation 135–91, chapter 4; attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier’s refusal to comply with orders or correspondence and/or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.

	b.  Paragraph 13-3 states the characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under certain guidelines.  For Soldiers who have completed entry level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate.  In such cases, separation for unsatisfactory participation with an honorable characterization will be approved by the separation authority.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was required to attend all scheduled unit training.  It appears he chose not to do so.  According to the available evidence the applicant was aware that if he accumulated a certain number of unexcused absences within 1 year he could be declared an unsatisfactory participant.  The available evidence shows he was absent from training on 14 consecutive occasions.  In each instance, he would have been notified in writing and he acknowledged the notification.  

2.  Accordingly, subsequent to this history of unexcused absence, and after having counseled him on multiple occasions, his chain of command notified him of the intended separation action.  It appears he wanted the discharge action.  If his medical issues were the reason for his unexcused absence, his chain of command provided him with multiple opportunities to recover, including mental health, alcohol abuse recovery program, and continuous mentoring and counseling.  

3.  The characterization of service for unsatisfactory participants normally will be under other than honorable conditions, but characterization as general may be warranted under certain guidelines.  It appears his chain of command considered his wartime/overall service to reach this conclusion.  

4.  The applicant was a SGT/E-5, a leader of Soldiers.  He willfully failed to show up for training on 14 consecutive occasions; he was fully aware of his actions.  

5.  Nevertheless, his chain of command elected to reduce him for inefficiency instead of AWOL.  Although he was reduced by four consecutive orders from    E-5 to E-1, reduction for inefficiency is not authorized for more than one grade.  In other words, his chain of command was authorized to reduce him only to SPC/E-4 for the reason indicated (inefficiency).  

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 that all Department of the Army and National Guard records of the individual concerned be corrected by deleting from items 5a (Rank) and 5b (Pay Grade) of his NGB Form 22 the existing entries and replacing them with the entries "SPC" and "E-4" respectively. 

2.  The Board further determined that the evidence presented is 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 correcting to his rank/grade at the time of his discharge to SGT/E-5. 


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)                                         AR20120012089





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ABCMR Record of Proceedings (cont)                                         AR20120012089



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