IN THE CASE OF: BOARD DATE: 21 MAY 2009 DOCKET NUMBER: AR20090001815 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, in effect, that his under other than honorable conditions (UOTHC) discharge that was issued by the Army National Guard be upgraded to an honorable discharge. 2. The applicant states that the particulars surrounding his discharge did not merit less than honorable conditions. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 15 December 2008 in support of his application. 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 Regular Army on 21 May 1974 and was released from active duty on 12 May 1977. On the following date, he transferred to the U.S. Army Reserve Control Group (Reinforcement). He continued to serve in the Army Reserve through reenlistments. 3. The applicant enlisted in the Oregon Army National Guard on 7 June 1986. 4. The applicant’s discharge notification packet is not available. Headquarters, Oregon National Guard, Orders 124-26, dated 28 June 1995, discharged him from the Army National Guard and as a Reserve of the Army on 1 February 1995 under the provisions of National Guard Regulation 600-200, paragraph 8-27g based on unsatisfactory participation with an UOTHC discharge. He had completed 8 years, 7 months, and 25 days net service this period and 2 years, 11 months, and 21 days prior Reserve component service. 5. National Guard Regulation 600-200, paragraph 8-27g states Soldiers are discharged from the State Army National Guard when a Soldier is determined to be an unsatisfactory participant per Army Regulation 135-91, chapter 4. Commanders may recommend retention of Soldiers who have accrued 9 absences within one year period. This regulation does not provide characterization of service appropriate for Soldiers separated because of unsatisfactory participation but refers to Army Regulation 135-178. 6. Army Regulation 135-178 (Separation of Enlisted Personnel) provides, in pertinent part, for the discharge or transfer to the U. S. Army Reserve Control Group (Annual Training) of statutorily obligated enlisted members who failed to participate satisfactorily in unit training as required. The regulation applied[s] to enlisted Soldiers of the Army National Guard of the United States and the U. S. Army Reserve. In pertinent part, it states that the honorable characterization of service is appropriate when the quality of the Soldier’s service generally met the standards of acceptable conduct and performance of duty for military personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweigh positive aspects of the Soldier's military record. 7. Army Regulation 135-91 (Service Obligations, Methods, Participation Requirements, and Enforcement Procedures) states, in part, that a Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled inactive duty training occur during a one-year period. An unexcused absence from annual training occurs when Soldiers fail to attend or complete the entire period of active duty. This applies to a Soldier of a unit or U.S. Army Reserve Control Group. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the particulars surrounding his discharge did not merit less than honorable conditions. However, there is no evidence of record which substantiates his claim. 2. The applicant was discharged from the Army National Guard on 1 February 1995 for unsatisfactory participation with an UOTHC discharge. 3. In the absence of evidence to the contrary, it is presumed that the applicant's discharge notification packet and subsequent discharge from the Army National Guard was administratively correct and in conformance with applicable regulations. 4. It appears the applicant’s Army National Guard chain of command determined that his overall military service did not meet the standards for an honorable discharge and appropriately characterized his service as UOTHC. 5. There is no apparent error, injustice, or inequity on which to base recharacterization of the applicant’s Army National Guard UOTHC discharge to honorable. 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. _______ _ _XXX______ ___ 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) AR20090001815 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001815 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1