IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130008892 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he never received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice or a court-martial, he was simply told not to come back.

3.  The applicant provides no additional 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.  The applicant enlisted in the U.S. Army Reserve (USAR) for a period of
6 years on 5 February 1979.  
3.  His record contains a DD Form 214 (Report of Separation from Active Duty) showing he entered active duty for training (ADT) on 12 March 1979 and was honorably released from ADT on 21 June 1979.  His DD Form 214 also shows he was awarded military occupational specialty 76V (Storage Supply Man). 

4.  His record contains a statement of understanding, dated 20 October 1979.  He and his commander signed this document wherein he stated: 

I,… understand [that under the provisions of]… [Army Regulation (AR)] 135-91 [Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures] and AR 135-178 [Enlisted Administrative Separations], as an Unsatisfactory Participant in the USAR unit to which I am assigned, [I] have been informed that I may receive a General Discharge.  Also, that all future endeavors I may pursue, may be prejudiced because of this General Discharge.

5.  His record contains a letter from his company commander, dated 25 January 1980, wherein his commander informed him that he had accrued 5 or more unexcused absences and was therefore an unsatisfactory participant.  His commander was taking the necessary steps to bar him from further reenlistment. His commander informed him that he had included a DA Form 4126-R (Bar to Reenlistment Certificate) and directed the applicant to complete section II (Individual's Review) of this form and return it to his unit within 30 days.  The applicant was advised that if he failed to complete and return the form within the specified time frame the action would be completed without his input.

6.  His record contains a DA Form 4126-R, dated 25 January 1980.  Section II of this form was left blank.  Section I (Commander's Recommendation), items 7 and 8 (Conduct and Efficiency) show he was rated as unsatisfactory.  In section I, item 12 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) his commander indicated that the applicant had "accrued 4 unexcused absences from drills on 19 August 1979 and 21 October 1979.  He will not claim his mail nor has he provided cognate reasons for his absences.  His commander recommended approval for a bar to reenlistment in the USAR or any other Armed Service."

7.  His record contains a memorandum, dated 25 January 1980, showing the bar to reenlistment was approved.  

8.  His record contains a letter from his commander, dated 21 May 1981.  This letter states that due to an administrative error, all unsatisfactory attendance he was charged with prior to 26 April 1980 was considered null and void.  Therefore, effective immediately, he was required to attend unit training assemblies (UTA) with his unit.  He was further informed that a failure to report to the UTAs could cause him to be transferred to Control Group Reinforcement, St Louis, MO with a recommendation that he receive a general discharge.  This letter included a receipt for certified mail showing a post date of 21 May 1981.  The letter was delivered to the applicant who signed for its receipt on 22 May 1981.

9.  The applicant's record contains a 1 AA Form 840-R (Letter of Instructions - Unexcused Absences), dated 21 June 1981, showing the unit attendance records indicated he was absent from the scheduled UTA or Multiple UTAs (MUTA) on 20 June 1981 and 21 June 1981.  This letter of instructions further stated:

	a.  Under the provisions of Army Regulation 135-91, he was required to attend all scheduled UTAs and annual training (AT) periods.  In addition, he was required to participate on a satisfactory manner with regard to proper military appearance and performance of assigned duties.

	b.  Unless the absences indicated were excused, he will have accrued 4 unexcused absences within a 1 year period.  The one-year period began the date he incurred his first unexcused absence.

	c.  Absences from UTAs could only be excused for reasons of sickness, injury, emergency, or other circumstances beyond his control.  If his absence was for one of those reasons he was required to submit to his unit medical documentation or an affidavit from person(s) having knowledge of the circumstance within 15 days of his receipt of the letter of instruction and his unit would provide him with a written response (approval/denial) to his request within 10 days upon receipt of his request.

	d.  He was informed that if he accumulated 9 unexcused absences within a one-year period he could be declared an unsatisfactory participant.  If he was declared an unsatisfactory participant, a board of officers would be convened to consider the circumstances and make appropriate recommendations.  The board could recommend he be transferred to the Individual Ready Reserve (IRR) for the balance of his statutory obligation, at which time he would be discharged, normally under conditions other than honorable.

	e.  He was further informed that the next UTA was scheduled for 18 July 1981 and 19 July 1981.

	f.  This letter included a receipt for certified mail showing a post date of 
22 June 1981.  The letter was delivered to the applicant who signed for its receipt on 1 July 1981.
10.  His record contains a 1 AA Form 840-R, dated 4 October 1981, showing the unit attendance records indicated he was absent from the scheduled UTA or MUTA on 4 October 1981.  This content of this letter form was similar to the previous letter of instruction.  However, this letter informed him he had accrued 6 unexcused absences within a 1 year period and that the next UTA was scheduled for 21 November 1981 and 22 November 1981.  This letter included a receipt for certified mail showing a post date of 5 October 1981.  The letter was delivered to the applicant who signed for its receipt on 14 October 1981.

11.  His record contains a notification of reduction, dated 6 October 1981, wherein his commander informed him that his chain of command was contemplating whether or not he should be reduced in grade/rank to private (PVT)/E-1 for inefficiency.  This letter informed him of his rights and that he had 15 day to decide if he wished to present any evidence.  The applicant's endorsement, included with the letter, was blank indicating he did not acknowledge receipt of the notification.  This letter included a receipt for certified mail showing a post date of 26 October 1981.  The letter was delivered to the applicant who signed for its receipt on 27 October 1981.

12.  His record contains orders reducing him to PVT/E-1 and a notification informing him that he had 15 days to appeal the reduction.  There is no evidence to indicate he attempted to appeal his reduction.  This letter included a receipt for certified mail showing a post date of 6 October 1981.  The letter was delivered to the applicant who signed for its receipt on 7 October 1981.

13.  His record contains a 1 AA Form 840-R, dated 20 December 1981, showing the unit attendance records indicated he was absent from the scheduled UTA or MUTA on 19 December 1981 and 20 December 1981.  This content of this letter form was similar to the previous two letters of instruction.  However, this letter informed him he had accrued 10 unexcused absences within a 1-year period and that the next UTA was scheduled for 17 January 1982.  This letter included a receipt for certified mail showing a post date of 12 December 1981.  The letter was delivered to the applicant who signed for its receipt on 22 December 1981.

14.  His record contains a request for excused absence from UTA, dated 16 January 1982.  He requested that he be excused from UTAs on 20-21 June 1981, 4 October 1981, and 19-20 December 1981.  He stated that he was absent due to very serious family problems concerning his father.  However, his commander disapproved his request because it did not meet the prescribed criteria outlined in the 1 AA Form 840-R which stated that absences from UTAs could only be excused for reasons of sickness, injury, emergency, or other circumstances beyond his control.  If his absence was for one of those reasons he was required to submit to his unit medical documentation or an affidavit from person(s) having knowledge of the circumstance.

15.  His record contains a 1 AA Form 840-R, dated 16 January 1982, showing that he had been charged with 10 unexcused absences.  His commander informed him that based on these absences, he had to declare him an unsatisfactory participant and initiate action to separate him from the unit for misconduct under the provisions of Army Regulation 135-173, section VII, chapter 7.  He was also informed that if he was separated, his service could be characterized as under other than honorable conditions.  

	a.  His commander was suspending action for 45 days to give him an opportunity to: consult with the lieutenant colonel (LTC) who had been appointed as his consulting counsel (he ordered him to contact his consulting counsel immediately and schedule an appointment), appear and present his case before an administrative separation board, be represented at a hearing by counsel, submit statements in his own behalf, waive all of his rights with the exception of consulting counsel, and withdraw his waiver of rights at any time before the separation authority directs separation.

	b.  His commander informed him that the final decision as to whether he would be separated from his unit and transferred to the IRR and the characterization of service rested with the separation authority.  If his service was characterized as less than honorable he could expect to encounter substantial prejudice in civilian life.

	c.  His commander informed him that he was not required or authorized to attend meetings or AT while the separation action was pending.  He also informed him that he was required to acknowledge receipt of this notification by 1 March “1981” (i.e., 1982).  Additionally, the applicant signed the notice on 
16 January 1982.

16.  This commander’s notification included two additional enclosures which contained the official acknowledgement and the proposed separation and information indicating he had been advised of his rights and consulted with counsel and been advised on the basis of the proposed separation.  However, these enclosures are blank.  It appears the applicant did not complete them or meet with counsel as ordered.

17.  On 3 March 1982, the applicant's commander initiated separation action under the provisions of Army Regulation 135-178, Section VII, chapter 7 and recommended that he receive a characterization of service of under other than honorable conditions.
18.  The record contains a memorandum, dated 19 April 1982, which shows the applicant's chain of command was requested to order him to consult with legal counsel again.  This memorandum also stated that correspondence with the applicant should be forwarded by certified mail with a return receipt requested.  If the applicant failed to consult with counsel and complete the waiver statement the request for separation could be resubmitted.

19.  His record contains a memorandum from his company commander, dated 
13 September 1982, which shows the applicant's separation packet was being resubmitted.  This memorandum further stated the applicant had been notified twice more by certified mail but no response was returned.  The letters and certified mail receipts were attached.

20.  His record does not contain any further documentation pertaining to his unit's attempt to separate him beyond 13 September 1982; however, it appears he was transferred to the IRR. 

21.  Special Orders (SO) Number D-03-900791, issued by the U.S. Army Reserve Personnel Center, on 19 March 1985, show he was discharged from the USAR (IRR) on 19 March 1985 in accordance with Army Regulation 135-178 and received the characterization of service of under other than honorable conditions.

22.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of USAR enlisted Soldiers for a variety of reasons.

	a.  Chapter 7 provides for the separation of enlisted personnel for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, commission of a serious offense, and convictions by civil authorities.

	b.  Chapter 13 provides for the separation of Soldiers when it is determined the Soldier is an unsatisfactory participant.  The characterization of service normally assigned to members separated under this chapter will be under other than honorable conditions; however, the separation authority may authorize an honorable or general discharge if warranted based on the member's overall record of service.

	c.  Paragraph 2-9a provides that an honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  Paragraph 2-9b provides that a general under honorable conditions characterization is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh the positive aspects of the Soldier's military record.  When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his characterization of service should be upgraded because he never received NJP or a court-martial, he was simply told not to come back.  His contention is rejected. 

2.  The evidence of record shows he was contacted several times via certified mail and through face-to-face contact with his commander.  He was aware that he could not miss more than 9 unexcused UTAs or MTAs within a year without being considered an unsatisfactory participant.  He received numerous certified letters which he signed for, indicating he had missed UTAs, and explaining the possible consequences.  He was even informed of his pending separation on 16 January 1982.  His unit made every attempt to involve him in the separation process and in the end he chose not to respond. 

3.  At some point he was transferred to the IRR and later discharged in accordance with Army Regulation 135-178 with a characterization of service of under other than honorable conditions.  

4.  The documents related to his separation board action and transfer to the IRR carry with them a presumption of regularity in the separation process.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were protected throughout the separation process.

5.  His unsatisfactory participation clearly diminished the overall quality of his service below that meriting an honorable discharge or a general discharge under honorable conditions.  Therefore, absent evidence of an error or injustice in the discharge process, there is an insufficient evidentiary basis to support granting 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)                                         AR20130008892



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ABCMR Record of Proceedings (cont)                                         AR20130008892



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