IN THE CASE OF: BOARD DATE: 16 June 2011 DOCKET NUMBER: AR20100028221 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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable or general discharge. 2. The applicant states he never had any negative infractions; he never received notification that he was being discharged; and he had to be notified of the proposed discharge if he was going to be given anything other than an honorable or general discharge. 3. He continues that since he was never given any documents which would show he was being discharged, it is hard to appeal his case. However, he was a good Soldier, took on additional responsibilities, and received recognition for his exemplary service. 4. He adds he had problems with paperwork in the Army all through his military career, which led to delays in his promotions. This was due to him being moved to six different units after his unit's decommission. 5. He quotes an excerpt of an Army Regulation which states that a Soldier must be given an honorable or general discharge. 6. The applicant provides documents which he lists in his request. CONSIDERATION OF EVIDENCE: 1. He enlisted in the U.S. Army Reserve (USAR) on 19 January 2001 for 8 years. 2. His retirement point summary shows that he earned sufficient retirement points to establish qualifying years of service for retired pay purposes (50 points) for Retirement Year Ending (RYE) 19 January 2002, 19 January 2003, and 19 January 2004. However, he only earned 31 retirement points for RYE 19 January 2005; 39 retirement points for RYE 19 January 2006; 15 retirement points for RYE 19 January 2007; and 14 points for RYE 28 December 2007. He had not attended a weekend drill since 16 October 2005. 3. He was discharged UOTHC on 28 December 2007. The Integrated Personnel Electronic Records Management (iPERMS) shows this discharge was for misconduct. 4. Army Regulation 135–178 (Army National Guard and Army Reserve Enlisted Administrative Separations), chapter 13, Misconduct, Unsatisfactory Participation in the Ready Reserve, paragraph 13–1, Basis, states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: a. The Soldier is an unsatisfactory participant as prescribed by Army Regulation 135–91, chapter 4. b. Attempts to have the Soldier respond or comply with orders or correspondence have resulted in— (1) The Soldier’s refusal to comply with orders or correspondence. (2) A notice sent by certified mail was refused, unclaimed, or otherwise undeliverable. (3) Verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities. 5. Army Regulation 135–178, paragraph 13–3, Characterization of service, states that the characterization of service for Soldiers separated for misconduct, unsatisfactory participation, normally will be UOTHC, but characterization as general (under honorable conditions) may be warranted. 6. Army Regulation 135–91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), states Soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any one-year period a total of nine or more unexcused absences from scheduled inactive duty training. 7. On 11 August 2010 the Army Discharge Review Board denied the applicant's request for upgrade using a presumption of regularity, that what the Army did was correct. DISCUSSION AND CONCLUSIONS: 1. The only record contained in the applicant's record pertaining to his discharge is his discharge order which shows he was discharged UOTHC. 2. However, iPERMS shows his discharge was for misconduct. iPERMS also shows the applicant did not attend any drills for over 2 years prior to his discharge. 3. While the reason for the applicant's separation cannot be determined with any certainty, it would appear that it was for unsatisfactory participation since he was not attending drills. Such a separation would warrant a UOTHC discharge. 4. As such, there is little choice but to also apply a presumption of regularity in assuming that the applicant was properly discharged. 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) AR20100028221 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100028221 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1