IN THE CASE OF:	   

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130021383 


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.  Additionally, he requests restoration of his previous rank and grade.

2.  The applicant states that during the summer of 1981 he did not attend two weeks of summer camp (i.e., annual training) because he was hospitalized and diagnosed with spinal meningitis.  During his first week he was in the intensive care unit and he remained in the hospital for two additional weeks.  He turned in paperwork to his Reserve unit, but records are no longer available.   

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) for the period ending on 28 May 1976, a self-authored letter, and Orders 
D-03-901809 dated 31 March 1982.

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) on 4 December 1975.  He was ordered to active duty for training on 25 January 1976.  He served on active duty for 4 months and 4 days and was honorably released on 28 May 1976.

3.  On 4 November 1978, he was promoted to the rank/grade of specialist four (SP4)/E-4.

4.  His military personnel records jacket (MPRJ) contains numerous letters of unexcused absences with return receipts.  These letters show the following:

   a.  On 21 July 1980, he was notified that he was absent from the scheduled unit training assembly (UTA) on 19 and 20 July 1980.  The letter stated that if his absences were not excused, he would have accrued 17 unexcused absences.  He signed the return receipt on 31 July 1980, verifying that the letter was delivered.
   
   b.  On 7 September 1980, he was notified that he was absent from the scheduled UTA on 3 September 1980.  The letter stated that if his absence was not excused, he would have accrued 19 unexcused absences.  The letter was returned to sender as "unclaimed."

   c.  On 30 October 1980, he was notified that he was absent from the scheduled UTA on 25 and 26 October 1980.  The letter stated that if his absences were not excused, he would have accrued 18 unexcused absences.  The letter was returned to sender as "refused."

   d.  On 18 December 1980, he was notified that he was absent from the scheduled UTA on 13 December 1980.  The letter stated that if his absence was not excused, he would have accrued 18 unexcused absences.  He signed the return receipt on 30 December 1980, verifying that the letter was delivered.

   e.  On 26 December 1980, he was notified that he had accrued 18 unexcused absences within a one-year period.  The notification letter stated he did not submit a request that he be excused for periods on 19 and 20 July, 3 September, 25 and 26 October, and 13 December 1980.  The letter further stated that in view of his unexcused absences, he would be declared an unsatisfactory participant and his commander would initiate action to separate him from the unit for misconduct, under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), chapter 7, by reason of unsatisfactory participation.  He was appointed a Judge Advocate General (JAG) officer as consulting counsel.  He signed the return receipt on    30 December 1980, verifying that the letter was delivered.

5.  In a letter, dated 18 January 1981, subject:  Consulting Counsel – Unsatisfactory Participation, his commander reiterated that he was given the name of a JAG officer to consult with and that the counseling was mandatory.  The applicant was therefore ordered to contact the consulting counsel immediately.  The letter was returned to sender as "unclaimed."

6.  The complete packet pertaining to his discharge proceedings under the provisions of Army Regulation 135-178, chapter 7, are not contained in his available military records.  

7.  However, his record contains a letter, dated 10 February 1981, subject:  Unsatisfactory Participation of Statutory Obligated Members (Who Have Not Served 24 Months Active Duty), which shows his commander recommended that he be considered for separation for misconduct under the provisions of Army Regulation 135-178, chapter 7, by reason of unsatisfactory participation.  His commander recommended his service be tentatively characterized as under other than honorable conditions.    

8.  On 11 February 1981, his battalion commander concurred with his immediate commander's recommendation.  He said the applicant's repeated unexcused absences indicated his unwillingness to fulfill his statutory obligation.

9.  Orders 60-32, contained in his MPRJ, shows he was reduced from SP4/E-4 to private first class (PFC)/E-3, effective 30 March 1981.  The authority listed for this reduction was Army Regulation 140-158 (Army Reserve - Enlisted Personnel Classification, Promotion, and Reduction).

10.  On 31 March 1982, he was discharged from the USAR under other than honorable conditions.

11.  Army Regulation 140-158, in effect at the time, prescribed policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR Soldiers.  The regulation states, in pertinent part, that a Soldier may be reduced one grade for unsatisfactory participation.  The reduction authority for the grade concerned will be the company, troop, battery, and separate detachment commanders or a higher commander in the chain of command. 

12.  Army Regulation 135-178 sets forth the requirements and procedures for administrative separation of enlisted members of the USAR.  

   a.  Chapter 7, of the version then in effect, provided for the separation for misconduct by reason unsatisfactory participation of statutorily obligated members.  The regulation stated that an enlisted member separated for reason of unsatisfactory participation will normally be furnished a characterization of service of under other than honorable conditions.

	b.  Paragraph 1-10b(1), of the version then in effect, provided that an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member'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.

	c.  Paragraph 1-10b(2), of the version then in effect, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was unable to perform duty for three weeks in the summer of 1981 due to being hospitalized for spinal meningitis.   The evidence of record shows his discharge was not based on his non-performance of duty in the summer of 1981. 

2.  The evidence of record shows he failed to perform his scheduled UTAs throughout a portion of calendar year 1980.  The evidence of record shows he accrued 18 unexcused absences by 26 December 1980, and he was notified on numerous occasions concerning these accrued unexcused absences.  

3.  Although the complete packet concerning his discharge is not contained in his available records, the evidence shows he was assigned a counsel and he was ordered to contact him immediately concerning his separation.  Therefore, it appears that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

4.  The evidence fully supports his chain of command's decision to discharge him as an unsatisfactory participant.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge or restoration of his grade.

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)                                         AR20130021383





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ABCMR Record of Proceedings (cont)                                         AR20130021383



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