MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 July 2003
	DOCKET NUMBER:   AR2003085053

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Yolanda Maldonado		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:  In effect, that his rank be restored to specialist (SPC), pay grade E-4.

APPLICANT STATES:  That when he enlisted in the Washington State Army National Guard he had every intention to serve his country to the best of his ability.  His daughter was born on 29 November 1993.  He stated that the mother decided to flee to another state with the child against all court orders.  In March 1997, the FBI in Reno, Nevada located the mother and child.  He was granted full custody of the child and became a full-time parent.  He regrets not being able to fulfill his obligation to the National Guard.  At the time of the incident, he was in constant contact with his Platoon Sergeant and Company Commander who knew the situation first hand.  He requested leave and was granted that leave for personal reasons.  In late February 1997, he was notified that he was being discharged for "Non-Participation."  He received an "Other than Honorable" discharge which has been recently reversed to an "Honorable" due to these circumstances.  He requests that the Board reinstate his rank of SPC/E-4 because this was his rank at the time of the incident.  

The applicant submitted a supplemental letter in support of his application.

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

The applicant enlisted in the Army National Guard on 29 August 1990.  He was ordered to initial active duty for training (IADT) on 2 November 1990 and completed training as a motor transport operator.  He was released from IADT on 8 March 1991 and was transferred back to the Army National Guard.  

The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to SPC with an effective date and with a date of rank of 1 November 1993.  

Company B, 898th Engineer Battalion, Washington Army National Guard Orders Number 94-04, dated 24 October 1994 administratively reduced the applicant from SPC to private first class (PFC) for inefficiency with an effective date of 10 October 1994 and with a date of rank of 22 July 1991.

A DA Form 4187 (Personnel Action), dated 10 April 1996, advanced the applicant to SPC, pay grade E-4 with an effective date and with a date of rank of 1 May 1996 under the provisions of Army Regulation 600-200, paragraph 6-5 and 6-20.

Company B, 898th Engineer Battalion, Washington Army National Guard Orders Number 3-3, dated 10 July 1996 administratively reduced the applicant from SPC, pay grade E-4 to PFC, pay grade E-3 for inefficiency and unsatisfactory participation with an effective date of 23 June 1996 and with a date of rank 10 October 1994.

The applicant was reduced from PFC to private (PV2), pay grade E-2 with an effective date of 21 November 1996 and with a date of rank of 7 March 1991 by Company B, 898th Engineer Battalion Orders Number 4-1, dated 21 November 1996, for unsatisfactory participation.

The applicant was discharged from the Army National Guard on 8 March 1997 in the rank of PV2, pay grade E-2 under the provisions of National Guard Regulation 600-200, paragraph 8-27g based on unsatisfactory participation with a general discharge.

The applicant's characterization of service was upgraded to honorable by the Army Discharge Review Board (ADRB) on 29 May 2002 but the ADRB did not change the reason for separation.

National Guard Regulation (NGR) 600-200, in effect at the time, sets forth the basic authority for the personnel management of enlisted personnel of the Army National Guard (ARNG).  Chapter 6 covers promotion and reduction of enlisted personnel in the ARNG.  Paragraph 6-44a states that commanders may reduce soldiers for inefficiency.  Inefficiency is defined not only as technical incompetence, but also as patterns or acts of conduct demonstrating that the soldier concerned lacks the abilities and qualities required and expected of a soldier of his or her rank and experience.  Commanders may consider any act(s) of misconduct, to include conviction by a civil court, record of unexcused absences or unsatisfactory participation (whether or not such acts also result in disciplinary action) as evidence of inefficiency.  Authority contained in this paragraph will not be used to reduce soldiers for actions of which they were acquitted as a result of courts-martial proceedings.

NGR 600-200, Table 6-2 states that when the reason for reduction is inefficiency, the date of rank (DOR) will be the same as that previously held in the grade to which reduced.  If DOR previously held is unknown, it will be same as latest enlistment date.

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.  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.

2.  The Board notes the applicant was administratively reduced twice from SPC to PFC, once for inefficiency and once for inefficiency and unsatisfactory participation.

3.  The Board also notes that the applicant was reduced from PFC to PV2, pay grade E-2 on 21 November 1996 for being an unsatisfactory participant and was discharged from the Army National Guard on 8 March 1997 in the rank of PV2, pay grade E-2. 

4.  Upon review of the evidence, the Board has determined that there is no error or injustice in this case.  The Board acknowledges that the ADRB upgraded his character of service to honorable; however, the ADRB did not change the reason for his separation.

5.  Based on the governing regulation, the applicant's commander properly reduced the applicant based on inefficiency and/or unsatisfactory participation.  Therefore, there is no basis for restoring the applicant's rank to SPC.

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2003085053	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030724	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	144.9213	
2.		
3.		
4.		
5.		
6.