IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20150007495 


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:

* 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.  The applicant states:

* his separation date should be shown as 17 December 1985
* he was absent because he sustained an injury to his left leg in 1979
* circumstances affected his performance and he had to take days off for treatment
* he consulted with counsel at the time and a recommendation was made for him to make up the missing days and not miss more days
* he left his unit and his contract was completed satisfactorily 
* he is currently experiencing substantial prejudice in civilian life, especially in the area of employment 
* the discharge characterization, coupled with the injury he sustained, has made his life difficult
* he has not completely healed, even after years of conventional treatment; he does not heal quickly
* he is experiencing pain in his left foot; he is also a father of five 

3.  The applicant provides:

* Certificate of Military Service
* DD Form 214, ending on 25 October 1979
* Elimination action
* Page 2 of his 4-page DA Form 2-1 (Personnel Qualification Record)
* 1985 discharge orders
* Appointment of board of officers memorandum
* Chronological record of medical care

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 U.S. Army Reserve for a period of 6 years in the rank/grade of private/E-1 on 24 May 1979.  

3.  On 24 May 1979, the Armed Forces Examining and Entrance Station, Fort Hamilton, NY published Orders 106-10 ordering him to initial active duty for training (IADT) under section 672, Title 10, U.S. Code.  He was ordered to enter active duty as follows:

* proceed from home and report to Fort Hamilton, NY on 5 July 1979
* report to reception station at Fort Jackson, SC, on 9 July 1979
* report to Fort Gordon, GA for 12 weeks of one station unit training (OSUT)

4.  He entered active duty on 5 July 1979 and completed basic combat training as well as the 12-week Wire System Installer/Operator Course in October 1979.  He was awarded military occupational specialty (MOS) 36C (Wire System Installer/Operator). 

5.  On 17 October 1979, Headquarters, U.S. Army Signal Center, Fort Gordon, GA published Orders 203-30 releasing him from ADT, effective 25 October 1979, and returning him to his Reserve unit, Company A, 99th Signal Company, Brooklyn, NY to compete his remaining military service obligations. 

6.  He was honorably released from active duty on 25 October 1979.  He was issued a DD Form 214 that shows he entered ADT on 5 July 1979 and was released from ADT on 25 October 1979.  He was credited with 3 months and 21 days of active duty service. 

7.  On 31 July 1980, the applicant was notified that action was being contemplated at Headquarters (HQ), 77th U.S. Army Reserve Command, Fort Totten, NY, to initiate board proceedings to separate him from the U.S. Army Reserve for misconduct in accordance with chapter 7 of Army Regulation 135-178 (Separation of Enlisted Personnel).  The reason for the proposed action was the applicant's failure to attend unit training assemblies (UTA).  

8.  On 28 April 1981, an official at HQ, First U.S. Army, Fort Meade, MD, notified the applicant that a recent board convened and determined whether he should be discharged or transferred to the IRR.  This HQ reviewed the Report of Board Proceedings and all other documentation related to the board action.  The findings and recommendations of this board were in his favor and his case would be closed.  He would be retained in his present U.S. Army Reserve status. 

9.  On 29 April 1981, an official at HQ, First U.S. Army, notified the applicant's headquarters, 77th U.S. Army Reserve Command, that based on the approved recommendation of a board of officers, the applicant would be retained in his present unit.  The official requested the unit commander notify him of this action and the date of the next scheduled UTA. 

10.  On 19 May 1981, the applicant's first sergeant, A Company, 99th Signal Battalion, notified him that he had been retained in the unit and advised him of the next scheduled UTA.  

11.  However, the applicant's records show between September 1981 and March 1982, he was absent from UTAs or multiple UTAs (MUTAs) multiple times.  On 
9 September 1981, 30 October 1981, 30 November 1981, 10 December 1981, and 8 March 1982, by Letter of Instruction-Unexcused Absence, the applicant's immediate commander notified him that he was absent from the scheduled UTA/MUTA for the scheduled period.  In each letter, he was also advised that:

	a.  Under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), he was required to attend all scheduled UTAs and annual training (AT) and perform in a satisfactory manner; 
	b.  Unless an absence was excused, he would have accrued a certain number of unexcused absences within a one-year period;

	c.  Absence from training assemblies may be excused for reasons of sickness, injury, emergency, or other circumstances beyond his control; he must notify his commander within 10 days of receipt of a letter and provide supporting documents; 

	d.  If he accrued 9 unexcused absences with one year, he could be declared an unsatisfactory participant, and if such action occurred, a board of officers could convene to determine if he should be discharged (normally under conditions other than honorable) or transferred to the Individual Ready Reserve (IRR);  

	e.  The applicant had accrued 10 unexcused absences.  The final decision as to whether he will be separated from the unit and transferred to the IRR and the character of service rested with the separation authority; and

	f.  He (the commander) must emphasize the stigma, handicap, and consequences of receiving an under other than honorable conditions discharge, which can have a lasting effect.  He (the applicant) should give careful consideration to the consequences of accumulating unexcused absences. 

13.  On 3 May 1982, the applicant's immediate commander initiated separation action against the applicant by reason of misconduct, unsatisfactory participation of a statutorily obligated member (who has not completed 24 months of active duty), in accordance with Section VII, Chapter 7, Army Regulation 135-178.  The immediate commander recommended the applicant's service be characterized as under other than honorable conditions.

14.  On 28 May 1982, by endorsement, an official at HQ, 77th U.S. Army Reserve Command, recommended the applicant be transferred to the U.S. Army Reserve Control Group (IRR) due to unsatisfactory participation and that his service be tentatively characterized as under other than honorable conditions.  The official stated that the applicant failed to contact appointed counsel within the prescribed 45-day period. 

15.  Following this recommendation for separation, his chain of command initiated a DD Form 368 (Request for Discharge or Clearance from Reserve Component).  This request shows: 

* the applicant was retained by an elimination board but is presently an unsatisfactory participant, again because of absence
* he was declared an unsatisfactory participant and was separated from the unit 

16.  On 19 July 1982, Headquarters, First U.S. Army, Fort Meade, MD published Orders 133-52 reducing him from private first class/E-3 to private (PV2)/E-2, effective 19 July 1982.

17.  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 Group (AT), effective 19 July 1982, by reason of being an unsatisfactory participant, with an under other than honorable conditions characterization of service.  The authority is listed as Army Regulation 140-10 (U.S. Army Reserve - Assignments, Attachments, Details, and Transfers). 

18.  Following this transfer, the applicant remained in the U.S. Army Reserve Control Group (Annual Training).  There is no indication he attempted to return to a troop program unit or make up the missed UTA/MUTAs. 

19.  On 21 November 1985, the U.S. Army Reserve Personnel Center, St. Louis, MO published Orders D-11-051367 reducing him from PV2/E-2 to private (PVT)/E-1 effective 21 November 1985. 

20.  On 17 December 1985, the U.S. Army Reserve Personnel Center, St. Louis, published Orders D-12-911759 discharging him from the U.S. Army Reserve, in the rank/grade of PVT/E-1 effective that date with an under other than honorable conditions characterization of service. 

21.  The applicant provides: 

	a.  Certificate of Service issued by the National Archives and Records Administration showing he served on active duty from 5 July 1979 to 25 October 1979. 

	b.  Chronological records of medical care that show he was seen in September 1979 for a foot illness or disease.  He was recommended to use low quarters, an ointment, and daily dressing changes. 

22.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States 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.

23.  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.  

24.  Army Regulation 135-91 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. 

25.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve Soldiers.  This regulation makes the following definitions: 

* Individual Ready Reserve (IRR): Soldiers who are assigned to the U.S. Army Reserve Control Group Annual Training, Reinforcement, or Officer Active Duty Obligator
* Multiple Unit Training Assembly (MUTA) is two or more UTAs conducted consecutively
* Obligated member is a Soldier who has not completed their statutory military service obligation
* The statutory military service obligation is incurred by law on initial entry into the service
* Ready Reserve are units and individual Reservists liable for active duty as outlined in Title 10, U.S. Code, section 672 and 673
* Statutorily obligated member is a Soldier who is serving by reason of law 
* Unit Training Assembly (UTA) is an authorized and scheduled training assembly of a least 4 hours; this assembly is mandatory for all troop program unit members
* Unsatisfactory participant is a member of a unit or the U.S. Army Reserve Control Group who fails to participate

25.  Army Regulation 635-5 (Separation Documents), in effect at the time (and Army Regulation 635-8 (Separation Processing and Documents) currently in effect) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  A DD Form 214 will be prepared for Reserve Component Soldiers completing 90 days or more of continuous active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his separation date on his DD Form 214 is incorrect and his under other than honorable conditions characterization of service should be upgraded to honorable.

2.  With respect to his separation date, the applicant confuses active service and inactive service.  

	a.  The evidence of record shows he completed one period of active duty service and he was issued a DD Form 214 for this period.  He entered ADT on 5 July 1979 and he was released from ADT on 25 October 1979.  He completed 3 months and 21 days of active service during this period.

	b.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  Reserve time is not listed on the DD Form 214 because it is not active service.  There is no evidence in his records and he provides none to show he completed another period of active duty service of at least 90 days in duration that would have required the issuance of a separate DD Form 214.  

3.  As for his unsatisfactory participation: 

	a.  The applicant was required to attend all scheduled UTAs and AT periods.  It appears he chose not to do so.  A board of officers convened and recommended his retention.  He remained with his unit based on this recommendation.  However, a few months later, he again missed training and accrued 10 unexcused absences.  According to the available evidence he was aware that if he accumulated 9 or more unexcused absences within 1 year he could be declared an unsatisfactory participant.

	b.  The available evidence shows he was absent from scheduled UTAs/MUTAs 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 immediate commander requested that he be released from the USAR for unsatisfactory participation.  He was released and transferred to the USAR Control Group (AT) in accordance with regulatory guidance and he was ultimately discharged from the U.S. Army Reserve with an under other than honorable conditions discharge.

	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 a general or 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)                                         AR20150007495





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ABCMR Record of Proceedings (cont)                                         AR20150007495



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