BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20130014998 


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 general discharge under honorable conditions to honorable.

2.  The applicant states he served in the Maryland Army National Guard (MDARNG) from 6 August 1990 to 15 November 1997.  The character of service he received was due to communication errors and an incorrect mailing address.

	a.  He was selected to fill a sergeant/E-5 position in Headquarters and Headquarters Company (HHC), Aviation Brigade (AVN BDE), Aberdeen Proving Ground, MD, and assigned to the unit in 1997.  That same year he was accepted into the police academy at Prince George's Community College.  Training included class every Saturday for an entire year.

	b.  He contacted the first sergeant (1SG) of his unit and explained that he would not be able to attend drills.  He was informed that he would be transferred to his previous unit in La Plata, MD.  The next communication he received was a letter stating he was being discharged because of lack of participation.

	c.  He spoke with the unit 1SG again and was told the only way to clear his record and receive an honorable discharge was to reenlist.  He states that prior to entering the police academy he had never missed a drill (inactive duty training (IDT) assembly) without contacting his superior and there was no derogatory information in his file.  He was granted a waiver to reenlist in the MDARNG and he continued to serve honorably for another 3 years.

	d.  He has been an officer with the Takoma Park Police Department for 15 years and he has received numerous awards, including Officer of the Year.

	e.  He was recently denied a Certificate of Eligibility for Loan Guarantee by the Department of Veterans Affairs based on his 1998 discharge.  After he reviewed his discharge documents, he realized the mailing address was incorrect and he had received a general discharge under honorable conditions.

	f.  He appealed the character of service for his discharge to the MDARNG, but his request was denied.  The correspondence he received revealed numerous absences from his unit in La Plata, MD, prior to his transfer to HHC, AVN BDE, Aberdeen Proving Ground, MD.  He asserts that his absences were excused with make-up dates coordinated through the 1SG of the unit.  He adds that he was selected for the SGT/E-5 position in the new unit based on his record of performance and information from his previous unit should have no bearing or connection to the issue under review.

3.  The applicant provides copies of his separation documents, civilian education, and the MDARNG decision.

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 Army National Guard of the United States (ARNGUS) and MDARNG on 6 August 1990 for a period of 8 years.

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty for training (ADT) on 10 January 1991 and was honorably released from ADT to the control of his MDARNG unit on 13 June 1991.  He completed 5 months and 4 days of net active service during this period.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

* item 18 (Appointment and Reductions), the highest grade he attained was specialist (SPC)/E-4 with a date of rank of 1 November 1993
* item 35 (Record of Assignments) –

* Company D, 121st Engineer Battalion, La Plata, MD, from 14 June 1991 through 31 December 1996
* HHC, AVN BDE, 29th Infantry Division, Aberdeen Proving Ground, MD, from 1 January 1997 through 25 May 1998

5.  A review of his records failed to show any evidence that he was promoted to SGT/E-5.

6.  Nine HHC, AVN BDE, memoranda addressed to the applicant at his home of record and last known address in Waldorf, MD, and sent via certified mail show the applicant failed to attend scheduled unit IDT as follows:

		Number of	Cumulative
Date	Dates of	Unexcused	Unexcused
Notified	Drills	Absences	Absences

19 March 1997	8-9 March 1997	4	4
28 May 1997	17-18 May 1997	4	8
20 August 1997	9-10 August 1997	4	4
25 September 1997	20-21 September 1997	4	8
14 October 1997	4-5 October 1997	4	12
14 November 1997	31 October 1997-	5	17
	1-2 November 1997
17 December 1997	6-7 December 1997	4	21
20 January 1998	10-11 January 1998	4	25

7,  HHC, AVN BDE, Orders 06-03, dated 9 October 1997, reduced the applicant from SPC/E-4 to private first class (PFC)/E-3 due to inefficiency effective 1 October 1997.

8,  HHC, AVN BDE, Orders 08-02, dated 18 November 1997, reduced the applicant from PFC/E-3 to private (PV2)/E-2 due to inefficiency effective 15 November 1997.

9.  On 16 April 1998, the Commander, HHC, AVN BDE, 29th Infantry Division (Light), requested the applicant's discharge from the MDARNG and as a Reserve of the Army with his service characterized as general under honorable conditions.  The basis for his request was the applicant's failure to attend scheduled IDT.  The request shows the applicant was counseled on eight occasions, that he was offered assistance in the matter, and that the separation authority approved the request for discharge.

10.  The applicant's NGB Form 22 (Report of Separation and Record of Service) shows he enlisted on 6 August 1990 and he was discharged under honorable conditions on 26 May 1998 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26d, based on unsatisfactory participation.  He completed 7 years, 9 months, and 21 days of total service during this period.

	a.  Item 18 (Remarks) of the applicant's NGB Form 22 shows this form was mailed to him at his last known address.

	b.  Item 19 (Mailing Address after Separation) of the applicant's NGB Form 22 shows his address as "XXXX C____ Circle, Waldorf, MD  20601."

11.  The applicant had a break in military service from 27 May 1998 through 13 December 1998.

12.  The applicant's NGB Form 22 shows he enlisted in the MDARNG on 14 December 1998 and he was honorably discharged under the provisions of National Guard Regulation 600-200, paragraph 8-26i, based on expiration of term of service.  He completed 3 years of total service during this period.

	a.  Item 5 (Rank, Pay Grade, Date of Rank) shows he was separated in the rank/pay grade of PV2/E-2 with a date of rank of 14 December 1998.

	b.  Item 18 shows the NGB Form 22 was mailed to the applicant at his last known address.

	c.  Item 19 shows his address as "XXXX N____ H____ Avenue, Apartment XXX, Hyattsville, MD  20783."

13.  On 31 July 2013, the MDARNG Deputy G-1 notified the applicant that a thorough review of his personnel file revealed he was discharged under the provisions of National Guard Regulation 600-200 and Army Regulation 135-178 (Enlisted Administrative Separations) based on unsatisfactory participation.

	a.  He added that the regulatory threshold for determining unsatisfactory participation is nine absences within a 1-year period and this prompts administrative/punitive actions.

	b.  He stated documentation shows the applicant had:

* 19 IDT absences from August 1991 to August 1992
* 17 IDT absences with no annual training (AT) attendance from August 1995 to August 1996
* 30 IDT absences with no AT attendance from August 1996 to August 1997
* 40 IDT absences with no AT attendance from August 1997 to May 1998

	c.  He stated the command exercised significant forgiveness for a 2 1/2-year period prior to his enrollment in the police academy.

	d.  He stated that Army Regulation 135-178 provides that a discharge for unsatisfactory participation will be general under other than honorable conditions; however, the regulation allows the discharge authority to upgrade the character of service to general under honorable conditions.  The discharge authority exercised this option to upgrade the applicant's character of service to general under honorable conditions.

14.  The applicant provided the following documents in support of his application:

	a.  An Equifax Consumer Credit Report, dated 13 May 2013, shows the applicant's address information (i.e., current address and seven former addresses).  It shows the earliest date that any of the former addresses was first reported was in June 1998.

	b.  A first and second endorsement to a memorandum shows the 1st Battalion, 115th Regiment, and 3d Brigade commanders recommended approval of the applicant's request for a waiver submitted on 19 November 1998.

	c.  A College of Southern Maryland, La Plata, MD, transcript, dated 6 April 2004, shows the applicant attended college on a part-time basis from 18 January 1994 through 14 December 1996, he earned 29 credits during that period, and he officially withdrew from the college during the Fall 1999 semester.

	d.  A Maryland Correctional Training Commission Certificate shows the applicant completed the Correctional Entrance Level Training Program conducted by the Prince George's County Correctional Training Academy in Upper Marlboro, MD, from 24 November 1997 to 30 January 1998.

15.  National Guard Regulation 600-200, Chapter 8 (Enlisted Separations) sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS.  It states that Soldiers who do not conform to required standards of conduct and performance and Soldiers who do not demonstrate potential for further military service should be separated to avoid the high costs of continued service in terms of pay, administrative efforts, degradation of morale, and substandard mission performance.

16.  Army Regulation 135-91 (ARNG and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines ARNGUS and U.S. Army Reserve (USAR) service obligations.  It prescribes policies and procedures governing the various types of service obligations and participation requirements.  Chapter 4 (Absences), section III (Unexcused Absences), states that Soldiers will be charged with unsatisfactory participation when, without proper authority, they accrue a total of nine or more unexcused absences from scheduled IDT in any 1-year period.

17.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and USAR.

	a.  Chapter 13 (Unsatisfactory Participation in the Ready Reserve) provides that a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because:

		(1)  the Soldier is an unsatisfactory participant as prescribed by Army Regulation 135-91, chapter 4;

		(2)  attempts to have the Soldier respond or comply with orders or correspondence have resulted in:

		(a)  the Soldier's refusal to comply with orders or correspondence;

		(b)  a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; and

		(c)  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.  Characterization of service normally will be under other than honorable conditions, but characterization as general under honorable conditions may be warranted under the guidelines in chapter 2.

	c.  Chapter 2 (Guidelines on Separation and Characterization), paragraph 2-9 (Characterization of Service), provides that:

		(1)  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;

		(2)  if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  Characterization of service as general under honorable conditions is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record; and

		(3)  service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under honorable conditions should be upgraded to honorable because he never missed IDT without contacting his superior, there was no derogatory information in his file, and the character of service he received was due to communication errors and an incorrect mailing address.

2.  The evidence of record shows the applicant had a history of unexcused absences over the course of several years during the period of service under review.  More importantly, he had a minimum of 25 unexcused absences from 9 August 1997 through 11 January 1998 which resulted in his discharge based on unsatisfactory participation.

3.  The applicant's discharge for unsatisfactory participation under the provisions of National Guard Regulation 600-200, paragraph 8-26d, was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of this case, the reason for his separation and characterization of discharge were appropriate and equitable.

4.  The applicant's contention that his discharge was due to communication errors and an incorrect mailing address was carefully considered.

	a.  The evidence the applicant provided with respect to his former addresses shows he did not report the information until after the date of his discharge.

	b.  He provided no documentary evidence in support of his claim that he was excused from his unit's IDT or any records that show he completed IDT on other (make-up) dates with his or any other ARNG unit.  The applicant offered that his police academy training (i.e., every Saturday for an entire year) caused him to miss scheduled IDT.  However, it is not clear why this would cause him to miss scheduled IDT on Sundays during that same year.

	c.  There is no evidence the applicant was reassigned to his former unit in La Plata, MD, subsequent to his assignment to HHC, AVN BN, Aberdeen Proving Ground, MD, on 1 January 1997.  In fact, orders issued by HHC, AVN BDE, show he was reduced from SPC/E-4 to PFC/E-3 on 1 October 1997 for inefficiency and further reduced to PV2/E-2 on 15 November 1997 for inefficiency.  Thus, it is reasonable to conclude the reductions in grade were the direct result of his continuing failure to attend his assigned unit's scheduled IDT.

	d.  The MDARNG Deputy G-1 reviewed the applicant's discharge and denied his request for an upgrade of the character of his service.

	e.  The fact that the applicant was granted a waiver to enlist and reenter service in the MDARNG on 14 December 1998 in the rank of PV2/E-2 and that he was issued an honorable discharge on 13 December 2001 has no bearing on the character of his service for the period from 6 August 1990 through 26 May 1998.

5.  Therefore, in view of the foregoing evidence, there is an insufficient basis for 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 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)                                         AR20130014998



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ABCMR Record of Proceedings (cont)                                         AR20130014998



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