IN THE CASE OF:	   

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140016414 


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 that her discharge from the U.S. Army Reserve (USAR), characterized as under other than honorable conditions, be upgraded to honorable.

2.  The applicant states:

* her discharge was unfounded and untrue
* she submitted a letter with full details to Ms. A_ _ S _ _ and she stated she had forwarded the letter to the Board
* she finished her part and she did it in an outstanding manner and with pride
* her daughter's father is a sergeant major on active duty
* after her daughter turned 5 years old, she could not even get her military identification card renewed  
* the reason she was given was that her father was never in the country at the time
* she tried many times throughout 30 years and she finally found someone who listened 
* Ms. A_ _ S _ _  has a letter with full details about her stay in the Army

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no additional argument or 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 USAR on 2 February 1981 for a period of            6 years as a statutory obligated member.

3.  Her enlistment contract shows she acknowledged she understood:

	a.  She would be required to attend all scheduled unit training assemblies (UTA) unless excused by proper authority.

	b.  If she accrued 9 or more unexcused absences during any continuous 
365-day period, she could be declared an unsatisfactory participant.  

	c.  She would be responsible for keeping her commander advised of her current mailing address.

	d.  She would be responsible for replying to and complying with all official orders and correspondence.

	e.  If she fails to participate satisfactorily, she could be declared an unsatisfactory participant and be separated from the service with an appropriate discharge, including a less than honorable discharge.  

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she attended initial active duty for training from 3 February to 4 June 1981.

5.  Her records contain several Letters of Instruction – Unexcused Absences and Notices of Unsatisfactory Participation, with dates ranging from 28 February to 
7 June 1982, which show she failed to report to several scheduled UTAs or multiple unit training assemblies (MUTA).  Attached to the notices of unsatisfactory participation certified mail return receipt cards from the U.S. Postal Service that show her command attempted to contact her regarding her unexcused absences.  The certified mail return receipt cards verify receipt of the correspondence; however, there is no evidence indicating she responded.

6.  On 7 June 1982, her immediate commander sent her a Notice of Unsatisfactory Participation, which informed her that based on her unexcused absences, he was declaring her an unsatisfactory participant.  She was also informed by her commander that he was initiating action to separate her for misconduct, under the provisions of Army Regulation 135-178 (Army National Guard (ARNG) and Army Reserve – Separation of Enlisted Personnel), chapter 7, section VII, and that she could receive an under other than honorable conditions discharge.

7.  The commander also informed her he was suspending the separation action for 45 days in order to give her opportunity to:

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

8.  The commander further advised her that the final decision as to whether she would be separated and transferred to the Individual Ready Reserve (IRR), and the character of service she would receive, rested with the separation authority.  

9.  The applicant did not respond.  As a result, no separation board was conducted.

10.  Orders Number 148-7, issued by Headquarters, 81st USAR Command, East Point, GA on 6 August 1982, reduced the applicant from pay grade E-3 to pay grade E-2.  These orders also reassigned her from her USAR unit in Tifton, GA, to the USAR Control Group (Annual Training), Reserve Components Personnel and Administration Center, St. Louis, MO.  The additional instruction section of the orders show her service was characterized as under other than honorable conditions.  



11.  Orders Number D-07-902408, dated 29 July 1987, issued by the USAR Personnel Center, St. Louis, MO, discharged her from the USAR effective 
29 July 1987, with her service characterized as under other than honorable conditions.  

12.  There is no evidence indicating she applied to the Army Discharge Review Board for an upgrade of her discharge.  

13.  The applicant stated Ms. A_ _ S _ _ is in receipt of a letter with full details about her stay in the Army; however, she did not provide such letter and the letter was not located in her available military records.  

14.  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.  Unless an absence is authorized, a Soldier failing to attend a scheduled drill will be charged with an unexcused absence.  When absence involves a MUTA, or any portion of a MUTA, the charge will be one unexcused absence for each 4-hour period not attended, but not to exceed four unexcused absences.  Unexcused absences remain charged to the Soldier on reassignment or reenlistment in another Reserve Component unit.

15.  Army Regulation 135-178, in effect at the time, provided for the separation of enlisted personnel of the USAR and ARNG.  Section VII of chapter 7 of this regulation prescribes the procedures for separation of enlisted members of the USAR for misconduct including by reason of unsatisfactory participation of statutory obligated members.  It states:

	a.  All members separated under this section who have not completed their statutory obligation will be transferred to the IRR to complete that obligation.

	b.  When a member of a troop program unit has accrued 9 or more unexcused absences during a 12-month period, the unit commander will notify the member in writing of the proposed separation, his/her rights, and the proposed characterization of service, allowing 45 days for a reply.  Reasonable effort should be made to furnish this notification to the member through personal contact by a member of the command.  If such effort is unsuccessful, the notification will be mailed to the member by certified mail.

	c.  If the mail is returned as unclaimed or undeliverable or the member receipts for the notification but fails to respond, such action will constitute a waiver of the member's right to a hearing before a board of officers.  The separation authority may then proceed with appropriate action.

	d.  When transfer to the IRR has been approved, the separation authority will issue orders transferring the member to the USAR Control Group (Annual Training) with the approved tentative characterization of service shown under the additional instructions.

	e.  A member who is transferred to the IRR under this section with a tentative characterization of service of less than honorable normally will be discharged at the expiration of his/her statutory service obligation with that characterization.  However, he/she may earn a higher characterization of service at the expiration of his/her statutory service obligation by rejoining the same or another USAR unit and participating satisfactorily for the remainder of his/her service obligation, but no less than 12 months or volunteering for and serving satisfactorily on a tour of at least 45 days active duty for training.

	f.  An honorable discharge is a separation from the U.S. Army with honor.  It is conditioned upon proper military behavior and proficient and industrious performance of duty.

	g.  A general discharge is a separation under honorable conditions of an enlisted member whose military record is not sufficiently meritorious to warrant an honorable discharge.  

	h.  An under other than honorable conditions discharge is an administrative separation under conditions other than honorable.  It may be issued for misconduct.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of her discharge under other than honorable conditions to honorable has been carefully considered.  

2.  The applicant's record shows she was discharged by reason of continued absence from unit assemblies with an under other than honorable conditions discharge.

3.  The applicant's enlistment contract clearly stipulates that as a member of the USAR she was required to attend all scheduled UTA, MUTA, and annual training periods.  Evidence shows she acknowledged she understood the stipulations of her contract; however, she did not comply with those stipulations.  Certified mail receipts prove that she received notification letters from her immediate commander; however, it appears she chose to ignore the correspondence.

4.  The available evidence confirms her separation processing for misconduct based on her failure to satisfactorily participate in the USAR was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  

5.  Based on her failure to attend unit drills and to reply to correspondence from her command, the applicant's service did not meet the standards of acceptable conduct and performance of duty for USAR personnel.  This misconduct also renders her service as unsatisfactory.  Therefore, she is not entitled to either a general or an honorable characterization of service.

6.  The applicant has failed to show that her command's actions and/or the character of service she received were in error or unjust.  As result, there is no basis to grant the applicant's 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)                                         AR20140016414



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ABCMR Record of Proceedings (cont)                                         AR20140016414



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