MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 February 2001  
	DOCKET NUMBER:   AR2000049258

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  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 correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the reason shown on her reassignment orders, dated 15 December 1995, be changed to “Voluntary” instead of “Unsatisfactory Participation”.  

APPLICANT STATES:  That she had been involved in a traffic accident and had to have surgery on her knee.  She contends that a copy of her doctor’s excuse/letter was submitted to her unit and this should have excused her from drill during her recovery period.  Instead of excusing her absences from drill she was charged with unexcused absences during this period.  She states that when she received her ninth unexcused absence she was transferred to the Inactive Reserve as an unsatisfactory participant.  In support of her application, she submits a copy of reassignment orders dated 18 November 1997; a copy of reassignment orders dated 15 December 1995; and a copy of her doctor’s letter dated 17 April 1995.     

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the USAR on 26 August 1991 for a period of 8 years.  She entered active duty for training on 31 October 1991 and was released from active duty on 27 February 1992 and transferred to the USAR to complete her remaining obligation.

The applicant’s records contain a letter, dated 17 April 1995, from her physician stating that the applicant had had reconstructive surgery on her right knee and would not be unable to participate in Army Reserve activities for at least 
6 months.  The date of the applicant’s knee surgery is not contained in the available records.

The applicant’s records fail to show the dates of missed drills which resulted in
her first 4 unexcused absences.

On 22 October 1995, the applicant was notified that she had accumulated 
8 unexcused absences within a one-year period for missing drill during the period 21 October 1995 to 22 October 1995. 

On 21 November 1995, the applicant was notified that she had accumulated 
12 unexcused absences within a one-year period for missing drill during the period 18 November 1995 to 19 November 1995. 

In a letter to the applicant, dated 6 December 1995, the commander of the
639th Transportation Company in Kingsport, Tennessee, stated “After carefully considering your complete file and any reasons you may have submitted for being absent, I have decided not to excuse the absence”.  The applicant was declared an unsatisfactory participant and advised that she would be transferred to the Individual Ready Reserve for the balance of her service obligation.
The applicant’s records contain orders 349-08, dated 15 December 1995, which show the applicant was reassigned to USAR Control Group (Annual Training) effective 15 December 1995, for unsatisfactory participation.  

The applicant’s records contain orders C-11-747451, dated 18 November 1997, which show the applicant was reassigned to a Troop Program Unit effective
10 November 1997.

On 17 July 1999 the applicant voluntarily extended her current enlistment for a period of 1 year. 

Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines Army National Guard and USAR service obligations.  Section III (Unexcused Absences) states that soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any 1 year period, a total of nine or more unexcused absences from scheduled drills; fail to obtain a unit of assignment during a leave of absence, granted per section IV; or fail to attend or complete annual training.  Officers and enlisted soldiers with the exception of ROTC Simultaneous Membership Program cadets will be processed for reassignment or separation.

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides for the policy and procedures for assigning, attaching, removing, and transferring USAR soldiers.  Chapter 4 of the regulation provides for the Individual Ready Reserve (IRR).  Paragraph 4-15 (Involuntary Reassignment for Unsatisfactory Participation) of this regulation states that a Troop Program Unit or Individual Mobilization Augmentee soldier who has completed initial entry training and has been awarded a military occupational specialty and is not within 3 months of expiration term of service, who fails to participate satisfactorily per Army Regulation 135-91, chapter 4, section III, may be reassigned to the appropriate control group of the IRR.  Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings per Army Regulation 135-178, chapter 13, when determined to be in the best interest of the Army.  Commanders will not take reassignment action under this paragraph solely to spare a soldier from administrative separation proceedings for other than unsatisfactory participation per Army Regulation 135-178. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that her doctor’s excuse should have excused her from drill during her recovery period is supported by the evidence of record.

2.  Medical evidence of record, dated 17 April 1995, shows that the applicant had reconstructive surgery on her right knee and was excused from her Army Reserve activities for at least 6 months.

3.  Six months later, on 22 October 1995, the applicant was notified that she had missed drill in October 1995 and had accumulated 8 unexcused absences within a one-year period.  On 21 November 1995, she was notified that she had missed drill in November 1995 and had accumulated 12 unexcused absence within a one-year period.  

4.  The Board considered the applicant’s request to change the reason shown on her reassignment orders, dated 15 December 1995, to “Voluntary” instead of “Unsatisfactory Participation”.  However, there is no evidence of record available to the Board, and the applicant has provided no evidence, which shows that she satisfactorily participated in scheduled drills after her recovery period during October and November 1995. Therefore, in the absence of evidence to the contrary, the Board determined that the reason “Unsatisfactory Participation” is correct as currently constituted.   

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JNS____  MHM____  RWA____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000049258	
SUFFIX		
RECON		
DATE BOARDED	20010227	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	19951215	
DISCHARGE AUTHORITY	AR 140-10	
DISCHARGE REASON	Unsatisfactory participation	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.