IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120017950 


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 correction of his record to show he was medically retired.

2.  He states that due to his service-connected injuries and disabilities, he was no longer qualified for worldwide duty.  He contends he should not have been discharged, but medically retired in 1990.  He was incorrectly informed by the U.S. Army Human Resources Command that he would not be able to draw retirement until he reached age 60.  His Department of Veterans Affairs (VA) records will verify this. 

3.  He provides the address of the VA Regional Office located in Montgomery, AL and a VA Claim Number, but he does not provide a copy of the claim or any other documentary evidence.

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.  Following periods of service in the Regular Air Force and the Air National Guard, the applicant enlisted in the Alabama Army National Guard (ALARNG) on 31 August 1988 in the rank/pay grade of staff sergeant (SSG)/E-6.

3.  His record contains a DA Form 2166-7 (Noncommissioned Officer Evaluation Report) rendered for the period November 1988 through October 1989, which shows no indication that he suffered from any medical condition that impaired his ability to perform his duties.

4.  On 21 January 1990, the applicant's unit commander sent him a memorandum, Subject:  Letter of Instruction-Unexcused Absence.  The commander informed the applicant he was absent from unit training assembly (UTA) or multiple unit training assembly (MUTA) on 20 and 21 January 1990 (Periods 1, 2, 3 and 4).  The commander reminded the applicant 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 unit training assemblies and annual training (AT) periods.  In addition, he was required to participate in a satisfactory manner with regard to proper military appearance and performance of assigned duties.  He provided the applicant guidance on how to be properly excused from training and reminded him that if he accumulated nine (9) unexcused absences within a one (1) year period, he could be declared an unsatisfactory participant and transferred to the Individual Ready Reserve (IRR) for the remainder of his obligation.  The commander advised the applicant that unless these absences were excused, he will have accrued four (4) unexcused absences within a one-year period which began on the date he incurred his first unexcused absence.  In closing, he informed the applicant that the next training assembly for the unit was scheduled for 9, 10, and 11 February 1990.

5.  On 11 February 1990, the applicant's unit commander sent him a memorandum, Subject:  Letter of Instruction-Unexcused Absence.  The commander informed the applicant he was absent from UTA or MUTA on 9, 10, and 11 February 1990 (Periods 1, 2, 3, 4, 5, and 6).  The commander reminded the applicant of his regulatory requirements to attend all scheduled UTAs and AT periods and to participate in a satisfactory manner.  The commander reiterated previous guidance on how to be properly excused from training and reminded him that if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant and transferred to the IRR for the remainder of his obligation.  The commander advised the applicant that unless these absences were excused, he will have accrued eight (8) unexcused absences within a one-year period which began on the date he incurred his first unexcused absence.  In closing, he informed the applicant that the next training assembly for the unit was scheduled for 3 March 1990.

6.  On 11 February 1990, the applicant's unit commander sent him a memorandum, Subject:  Notification of Pending Reduction.  The commander informed the applicant that it was his intention to reduce him from his present grade of rank of SSG/E-6 to sergeant (SGT)/E-5.  The commander further stated the unit attendance records indicated the applicant had been absent from drill during the following periods:  1, 2, 3, and 4 on 20 and 21 January 1990; 1, 2, 3, 4, 5, and 6 on 9, 10, and 11 February 1990.  He advised the applicant that these unexcused absences indicated a pattern of inefficiency which was the cause for this reduction action.  The commander provided the applicant a 10-day opportunity during which to present any matters in mitigations or rebuttal prior to this action being taken.

7.  On 6 March 1990, the applicant's unit commander sent him a memorandum, Subject:  Letter of Instruction-Unexcused Absence.  The commander informed the applicant he was absent from UTA or MUTA on 3 and 4 March 1990 (Periods 1, 2, 3, and 4).  The commander reminded the applicant of his regulatory requirements to attend all scheduled UTAs and AT periods and to participate in a satisfactory manner.  The commander reiterated previous guidance on how to be properly excused from training and reminded him that if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant and transferred to the IRR for the remainder of his obligation.  The commander advised the applicant that unless these absences were excused, he will have accrued twelve (12) unexcused absences within a one-year period which began on the date he incurred his first unexcused absence.  In closing, he informed the applicant that the next training assembly for the unit was scheduled for 7 and 8 April 1990.

8.  On 8 April 1990, the applicant's unit commander sent him a memorandum, Subject:  Letter of Instruction-Unexcused Absence.  The commander informed the applicant he was absent from UTA or MUTA on 7 and 8 April 1990 (Periods 1, 2, 3, and 4).  The commander reminded the applicant of his regulatory requirements to attend all scheduled UTAs and AT periods and to participate in a satisfactory manner.  The commander reiterated previous guidance on how to be properly excused from training and reminded him that if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant and transferred to the IRR for the remainder of his obligation.  The commander advised the applicant that unless these absences were excused, he will have accrued sixteen (16) unexcused absences within a one-year period which began on the date he incurred his first unexcused absence.  In closing, he informed the applicant that the next training assembly for the unit was scheduled for 5 and 6 May 1990.

9.  On 6 May 1990, the applicant's unit commander sent him a memorandum, Subject:  Letter of Instruction-Unexcused Absence.  The commander informed the applicant he was absent from UTA or MUTA on 5 and 6 May 1990 (Periods 1, 2, 3, and 4).  The commander reminded the applicant of his regulatory requirements to attend all scheduled UTAs and AT periods and to participate in a satisfactory manner.  The commander reiterated previous guidance on how to be properly excused from training and reminded him that if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant and transferred to the IRR for the remainder of his obligation.  The commander advised the applicant that unless these absences were excused, he will have accrued twenty (20) unexcused absences within a one-year period which began on the date he incurred his first unexcused absence.  In closing, he informed the applicant that the next training assembly for the unit was scheduled for 9 and 10 June 1990.

10.  On 6 May 1990, the applicant's unit commander informed him he was initiating action to separate the applicant from the ALARNG and as a reserve of the Army under the provisions of Army Regulation 135-178 (ARNG and Army Reserve - Enlisted Administrative Separations).  The commander stated the reason for his proposed action was the applicant's unsatisfactory participation and absence without leave.  He afforded the applicant an opportunity to:

* consult with counsel
* appear and present his case before an administrative separation board
* be represented at any hearing by appointed counsel for representation, military counsel of his own choice, if reasonably available, or civil counsel at his own expense
* submit statements in his own behalf
* waive the above rights in writing
* withdraw his waiver of rights above anytime before the date the separation authority ordered, directed, or approved his separation

11.  The commander further advised the applicant the final decision as to whether he would be separated (and if so, whether completely discharged or transferred to the IRR) and the character of his service would rest with the separation authority.  The applicant did not respond.  As a result, no separation board was conducted.

12.  Orders 151-188 issued by the Alabama State Military Department, Office of the Adjutant General, Montgomery, AL on 31 May 1990 discharged the applicant from the ARNG and assigned him to the U.S. Army Reserve (USAR) Control Group (Reinforcement) effective 6 May 1990 with an honorable characterization of service.

13.  His NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service) shows he was discharged accordingly.  This form also shows he was credited with a total of 16 years, 3 months, and 14 days of service for pay.

14.  USAR Personnel Center, St. Louis, MO Orders D-12-510842, dated 12 December 1995, discharged the applicant from the USAR Control Group (Reinforcement) with an honorable characterization of service effective 12 December 1995.

15.  His record is void of any evidence and he has not provided any evidence showing he suffered from any unfitting medical condition during his period of service.

16.  His ARPC Form 249-E (Chronological Statement of Retirement Points), dated 22 May 2013, shows he completed 14 years, 6 months, and 26 days of qualifying service for retirement between 2 October 1969 and 12 December 1995.

17.  Army Regulation 135-178 sets forth policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons to include the Soldier's refusal to comply with orders or correspondence and unsatisfactory participation in drills.  Characterization of service normally will be Under Other Than Honorable Conditions.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for Medical Evaluation Boards (MEBs), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

19.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.

20.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

21.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was discharged by reason of continued absence from drills with an honorable discharge.

2.  As a member of the ARNG, the applicant was required to attend all scheduled unit training assemblies, multiple unit training assemblies, and annual training periods.  The evidence shows he did not do so, and he was discharged from the ARNG accordingly.

3.  His record is void of any evidence and he has not provided any evidence showing he suffered from an unfitting medical condition during his period of service.  Additionally, the evidence shows he only completed 14 years,
6 months, and 26 days of qualify service for retirement; therefore, he is not entitled to retirement under any regulatory or statutory provision of law.

4.  Although he provides the address of the VA Regional Office located in Montgomery, AL and a VA Claim Number, he does not provide a copy of the claim or any other documentary evidence.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  In view of the foregoing, his contentions are unfounded and 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)                                         AR20120017950



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ABCMR Record of Proceedings (cont)                                         AR20120017950



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