IN THE CASE OF:	  

		BOARD DATE:	    13 October 2015

		DOCKET NUMBER:  AR20150003309 


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 from the Virginia Army National Guard (VAARNG) and correction of his rank/grade from private first class (PFC)/E-3 to sergeant (SGT)/E-5. 

2.  The applicant states:

* he never received his SGT/cadet rank in 3 years of college 
* he was illegally transferred from a communications unit to an infantry unit; he held military occupational specialty (MOS) 31L/25L (Wire Systems Installer)

3.  The applicant provides:

* College transcripts
* Letter from The Adjutant General, VAARNG
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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's records show he enlisted in the VAARNG in the rank/grade of private/E-1 on 28 April 1987.  He was assigned to Company D, 230th Signal Battalion, Virginia Beach.  He was promoted to private/E-2 on 2 January 1988.

3.  He entered active duty for training (ADT) on 30 June 1988 and he completed training for award of MOS 31L.  He was released from ADT to the control of his ARNG unit on 31 August 1988.  Following his release from active duty, he was promoted to specialist (SPC)/E-4 on 29 May 1990.

4.  On 13 December 1990, an ARNG Liaison Officer advised the Commander, 230th Signal Battalion that because the applicant desired a Simultaneous Membership Program (SMP) slot and because his unit contained no SMP slots, reassignment to a unit that had an SMP slot was warranted to accommodate his desire.  

5.  On 20 December 1990, the applicant's commander approved the request to transfer the applicant to a unit that had an SMP slot.  Accordingly, the applicant was reassigned to the 3rd Battalion, 111th Air Defense Artillery, VAARNG effective 1 May 1991. 

6.  Meanwhile, on 19 February 1991, he executed a DA Form 597 (Army Senior Reserve Officers' Training Program (ROTC) Non-scholarship Contract).  He listed Norfolk State University as his educational institution and the completion date as May 1992. 

7.  In October 1991, the applicant's Professor of Military Science submitted a sworn statement indicating the applicant was counseled several times on his poor leadership ability and his inability to handle pressure.  He could not point out his location on a map during training and was unable to read a map.  He was also observed during training being led by the hand to the patrol base perimeter. 

8.  On 17 December 1991, following notification of initiation of ROTC disenrollment and appointment of an ROTC retention board, an informal board convened at Norfolk State University to determine if the applicant should be disenrolled from the ROTC program by reason of failing to maintain requirements for enrollment and displaying an inaptitude for military service by his intent to evade the terms of his contract.  
9.  The board found the applicant did enter into a valid ROTC contract and did receive money from the Government in the form of subsistence allowance, but displayed an inaptitude for military service.  The board recommended the applicant be disenrolled from the ROTC program for reasons other than willfully evading or voluntary breaching the terms of his contract.  The appointing authority concurred with the findings and recommendations. 

10.  On 18 December 1992, following a legal review for legal sufficiency, the applicant was ordered disenrolled from ROTC under the provisions of Army Regulation 145-1 (Senior ROTC Program Organization, Administration, and Training), paragraph 3-43.

11.  Between February and July 1992, the applicant was absent from scheduled unit training assemblies (UTAs) or multiple unit training assemblies (MUTAs) on 14 February, 20 to 22 March, 30 May to 13 June, and 17 to 18 July 1992.  

12.  In each case, by certified/registered mail, the applicant's immediate commander notified him that he was absent from the scheduled UTAs/MUTAs for the scheduled period.  In each letter, the commander also advised him that he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant.  In each case, he was also provided an opportunity to explain and/or provide justification for the unexcused periods.  The certified mail receipts show the applicant accepted and signed for these letters.

13.  On 21 July 1992, Headquarters, 3rd Battalion, 111th Air Defense Artillery published Orders 16-4 reducing him from SPC/E-4 to PFC/E-3 effective 21 July 1992 by reason of inefficiency.  

14.  On 29 July 1992, VAARNG published Orders 146-57 discharging him from the ARNG and assigning him to the U.S. Army Reserve (USAR) Control Group (Annual Training) effective 31 July 1992 by reason of being an unsatisfactory participant, in accordance with chapter 8 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management). 

15.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was discharged from the VAARNG as an unsatisfactory participant, in accordance with chapter 8 of NGR 600-200.  His characterization of service is shown as "general" under honorable conditions and his rank/grade is shown as "PFC/E-3."


16.  On 12 March 1993, U.S. Army Instructor Group, Norfolk State University, published Orders 5-2 releasing the applicant from his cadet status in the USAR (ROTC), effective 18 December 1992, under the provisions of paragraph 3-45 of Army Regulation 145-1. 

17.  On 2 May 1995, the USAR Personnel Center published Orders D-05-538300 honorably discharging him from the U.S. Army Reserve effective 2 May 1995. 

18.  On 8 January 2015, by letter, VAARNG TAG notified the applicant: 

	a.  This letter is in reply to his inquiry concerning his discharge from the VAARNG.  His inquiry states he felt the reason he was demoted from SPC/E-4 to PFC/E-3 and discharged was due to his absence from Annual Training (AT) in 1992.  He stated that he was unable to attend AT because of a back injury suffered in a motor vehicle accident prior to AT.  There is no documentation in his records that indicate he presented medical findings from a civilian doctor to his unit for review by military medical personnel for excusal from AT.  Only military medical personnel can determine if a Soldier should be excused from training, even in cases where the injury was sustained in a civilian status.  Additionally, he was absent from scheduled Training Assemblies on 14 February 1992, 20 to 22 March 1992, 17 to 18 July 1992 in addition to the AT period of 30 May to 13 June 1992.  Per correspondence found in his records, the unit attempted to contact him via certified mail after each absence.  There is no indication that he replied to any of these contact attempts.  For these reasons, he was involuntarily separated from service for unsatisfactory participation. 

	b.  In regards to being enrolled as an SMP participant, nothing in his records supports that claim.  However, participation in the SMP program has no bearing on his rank at discharge.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-15c & e, directs that SMP Soldiers will only hold the rank of SGT/CDT (E-5) while enrolled in the program.  Once they leave the program, either by course completion or disenrollment, they are returned to the rank held prior to course commencement.  At that point they may either commission, continue as an enlisted Soldier, or be discharged.

19.  He provides his college transcripts from Norfolk State University.  He circled several courses in Military Science, Drill and Ceremonies, and Leadership Management. 

20.  Army Regulation 135-178 (Separation of Enlisted Personnel) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons.  Chapter 7 of the regulation in effect at the time governed separation for misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  An honorable characterization of service is not authorized for a member who is no longer in an entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate.

21.  Army Regulation 135-178 states the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when a significant negative aspect of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record.  

22.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a 1-year period.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his rank/grade:

	a.  The applicant's records show he executed an ROTC/SMP contract and entered the ROTC program around August 1990.  By regulation, SMP Soldiers only hold the rank of SGT/CDT (E-5) while enrolled in the program.  Once they leave the program, either by course completion or disenrollment, they are returned to the rank held prior to course commencement.  

	b.  When the applicant was disenrolled, he reverted back to the rank/grade of SPC/E-4, the rank/grade he held prior to disenrollemnt.  If he had completed ROTC and accepted a commission, he would have been discharged from his enlisted status in the rank he held prior to discharge. 

	c.  When the applicant returned to his unit, he accrued multiple absences from training and was ultimately declared an unsatisfactory participant.  His higher headquarters published orders reducing him to PFC/E-3 for inefficiency.  When he was discharged as an unsatisfactory participant, he held the rank/grade of PFC/E-3, not SPC/E-4.  Therefore, his NGB Form 22 correctly lists his rank and grade and there is no evidence those entries are in error. 
2.  With respect to the characterization of service: 

	a.  The applicant was required to attend all scheduled unit training assemblies and annual training periods.  It appears he chose not to do so.  According to the available evidence he was aware that if he accumulated nine unexcused absences within 1 year he could be declared an unsatisfactory participant.

	b.  The available evidence shows he was absent from scheduled UTAs/MUTA's on multiple occasions.  In each instance, he was notified in writing and he acknowledged the notification.  Accordingly, subsequent to his history of unexcused absence, it appears his commander requested his separation from the ARNG for unsatisfactory participation.  He was released and transferred to the USAR Control Group (Annual Training) in accordance with regulatory guidance and he was ultimately honorably discharged from the USAR.

	c.  Based on his failure to attend unit drills the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  He does not meet the criteria for an honorable discharge.

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)                                         AR20150003309



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ABCMR Record of Proceedings (cont)                                         AR20150003309



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