IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150005218 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, an upgrade of the under other than honorable conditions discharge he received from the U.S. Army Reserve (USAR). 2. The applicant states: * he was going through some devastating circumstances at the time; his family was in bad shape * his discharge is inequitable because it was based on one isolated incident in 28 months of service with no adverse action * at the time, he learned that his wife was in a mental institution and his 5-year old son had cerebral palsy * he did not know what do; he tried to get permission to leave, but the Red Cross was unable to contact his wife because she was mentally ill * when he heard the news he lost his mind; he hopes the Board can understand his circumstances 3. The applicant did not provide any additional evidence. 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 USAR on 28 August 1980. He was assigned to Company B, 863rd Engineer Battalion, Fort Sheridan, IL. 3. He entered active duty for training (ADT) on 4 December 1980, completed the training requirements, and he was awarded military occupational specialty 62J (General Construction Equipment Operator). 4. On 18 February 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for willfully disobeying a lawful order. 5. He was honorably released from ADT on 3 April 1981 and returned to Company B, 863rd Engineer Battalion. 6. Between July 1981 and February 1982, the applicant was absent from scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTAs). 7. On 13 July 1981, 24 August 1981, 23 November 1981, and on 1 and 4 February 1982, by certified/registered mail, the applicant's immediate commander notified him that he was absent from the scheduled UTA/MUTA for the scheduled periods. In each letter, he was also advised he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant. In each case, he was also provided an opportunity to explain and/or provide justification for the unexcused periods. The certified mail receipts show the applicant received and accepted delivery of these letters but he failed to respond. He accrued 12 unexcused absences. 8. On 25 March 1982, the 416th Engineer Command, Chicago, IL, published two sets of orders: * Orders 60-8. reducing him from private/E-2 to private/E-1 * Orders 60-9, reassigning him to the USAR Control Group (Annual Training), effective 25 March 1982, as an unsatisfactory participant, and characterizing his service as under other than honorable conditions 9. Orders Number D-09-910453, issued by the USAR Personnel Center, St. Louis, MO, dated 8 September 1986, show the applicant was discharged from the USAR (Ready) with an under other than honorable conditions discharge, effective 27 August 1986, in accordance with Army Regulation 135-178 (Separation of Enlisted Personnel) by reason of misconduct - unsatisfactory participation. 10. The available evidence does not show that he applied to the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 11. 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. 12. 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. 13. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his under other than honorable conditions discharge from the USAR should be upgraded. 2. There is no evidence of record and the applicant did not provide convincing evidence which shows he encountered problems with his wife at the time or that he raised this issue with his chain of command or with any available source that may have been able to assist him in resolving this issues. 3. The applicant was required to attend all scheduled UTAs and annual training periods. According to the available evidence he was aware that if he accumulated nine unexcused absences within 1 year he could be declared an unsatisfactory participant. 4. 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 (Annual Training) in accordance with regulatory guidance and he was ultimately discharged from the USAR with an under other than honorable conditions discharge. 5. 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) AR20150005218 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005218 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1