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
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130021383
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130008892
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. His record contains a letter from his commander, dated 21 May...
ARMY | BCMR | CY2003 | 2003088635C070403
It states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1-year period. At the time the applicant enlisted in the MDARNG on 2 February 1980, he knew he was enlisting in the Maryland Army National Guard and as a Reserve of the Army. The Board is sympathetic with the problems he alleges to have encountered with his grandparents' illnesses and their lack of transportation to get medical treatment when he enlisted; but...
ARMY | BCMR | CY2011 | 20110008609
Counsel provides: * Honorable Discharge Certificate, U.S. Navy, dated 14 November 1977 * extract of DA Form 61 (Application for Appointment), dated 21 July 1980 * DD Form 398 (Statement of Personal History), dated 21 July 1980 * appointment letter, U.S. Army Reserve Components Personnel and Administration Center (RCPAC), St. Louis, MO, dated 20 November 1980 * Orders 29-10, Headquarters, 102nd U.S. Army Reserve (USAR) Command, St. Louis, MO, dated 7 April 1981 * diploma, Doctor of Dental...
ARMY | BCMR | CY2009 | 20090004473
The applicant's records further show that he was notified in writing of his unexcused absence and that each notification letter advised him that if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant and transferred to the Individual Ready Reserve (IRR) for the balance of his service obligation. The records show that he acknowledged receipt of the notification letters as follows: a. on 10 March 1980, by certified letter, the...
ARMY | BCMR | CY2003 | 2003091007C070212
In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. The applicant requests...
ARMY | BCMR | CY2009 | 20090001630
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. In return, he states he received a letter from his unit stating he had been discharged under other than honorable conditions. Letters on file in his service records show the unit commander advised the applicant that as an unsatisfactory participant, he could be transferred to the Individual Ready Reserve for the balance of his statutory obligation at which time he could be discharged under conditions other than honorable.
ARMY | BCMR | CY2015 | 20150007495
The applicant requests: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his separation date as 17 December 1985 vice 25 October 1979 * upgrade of his under other than honorable conditions discharge from the U.S. Army Reserve to honorable 2. On 4 August 1982, Headquarters, First U.S. Army, Fort Meade, MD published Orders 149-20 ordering the applicant released from Company A, 99th Signal Battalion, and transferred to the U.S. Army Reserve Control...
ARMY | BCMR | CY2011 | 20110001467
She further requests correction of item 35 (Record of Assignments) of her DA Form 2-1 (Personnel Qualification Record - Part II), to include: a. These orders show she was discharged from the USAR under the provisions of Army Regulation 135-178 on 8 May 1987. The applicant also requested to add to item 35 of her DA Form 2-1 the dates she attended the scheduled UTAs, the 16 weeks she attended IADT, and the 3 days of ADT at Fort Gordon, GA. 7.
ARMY | BCMR | CY2011 | 20110010476
The applicant's record shows he enlisted in the U.S. Army Reserve (USAR) on 22 March 1979 for 6 years. The applicant's record is void of the circumstances surrounding his unexcused absences; however, the Commander, Company A, 3rd Battalion, 18th Infantry notified the applicant by certified mail that the unit's records showed he had been absent from scheduled Unit Training Assemblies (UTA) on 2 August 1981, 13 December 1981, 22 and 23 May 1982, and 12 and 13 June 1982. As such, he was...
ARMY | BCMR | CY2014 | 20140016414
Army Regulation 135-91 (ARNG and USAR 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 during a 1-year period. Army Regulation 135-178, in effect at the time, provided for the separation of enlisted personnel of the USAR and ARNG. The applicant's record shows she was discharged by reason of continued absence...