ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 January 2019 DOCKET NUMBER: AR20160013207 APPLICANT REQUESTS: an upgrade of his unsatisfactory participation discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he did his time in the U.S. Army until his honorable discharge in September 1986. He also did his time as a Ready Reserve. When he entered Regular Reserve, he started having problems with his ex-wife, which took him years to overcome. These issues caused him to miss some time in the Reserves. 3. A review of the applicant’s service records show: a. The applicant enlisted in the Regular Army on 4 January 1985. b. He was honorably released from active duty on 16 September 1986 and transferred to U.S. Army Reserve (USAR) Control Group (Annual Training (AT)), Saint Louis, MO. He was separated in the rank/grade of specialist (SPC)/E-4. c. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 8 months, and 13 days of active service. It also shows he was awarded or authorized: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * First Class Marksmanship Qualification Badge with Grenade Bar * Army Service Ribbon d. He was promoted to sergeant (SGT)/E-5 on 9 September 1988 in the USAR. e. On 28 June 1989, he was released from USAR Control Group (AT) and assigned to a troop program unit of the USAR, Company B, 2nd Battalion, 100th Regiment, 100th Training Group, Fort Knox, KY. f. On 8 February 1990, he was issued a Letter of Instruction for unexcused absences. It stated: (1) The attendance records of the unit show he was absent from scheduled unit training assembly on 5 and 6 January 1990. (2) He was required to attend all scheduled unit training assemblies (UTAs). In addition, he was required to participate in a satisfactory manner with regard to proper military appearance and performance of assigned duties. Unless the absences were excused, he accrued two unexcused absences. (3) Absences may be excused only for reasons of sickness, injury, emergency, or other circumstances beyond the applicant’s control. If his absence was for one of these reasons, he should furnish the unit an appropriate affidavit of certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency circumstances. His absence could not be excused unless his request with supporting documentation was received within 15 days of the date he received the letter. (4) If he had family responsibilities that were causing a hardship or if his civilian job was of critical importance to the national or community health, safety or interest, he should contact the commander so that the command could advise and assist him in the proper procedures to resolve these problems. (5) If the commander elects not to declare him an unsatisfactory performer and he accumulates nine unexcused absences within one-year period, the applicant would be declared an unsatisfactory participant. If so, the applicant would be transferred to the Individual Ready Reserve (IRR) for the balance of his obligation or discharge. g. Postal Service (PS) Form 3800 (Receipt for Certified Mail) shows that an Unsatisfactory Participation Letter was mailed to the applicant for January drill. h. On 11 July 1990, memorandum, subject: Reduction under the Provisions of Army Regulation (AR) 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), was signed by the battalion commander notifying the applicant that he was pending reduction to SPC/E-4 because of 6 unexcused absences over the past 7 months. He was notified that the reduction action was suspended for 30 days to give him the opportunity to exercise his rights. i. On 11 July 1990, the applicant was issued a Letter of Instruction for unexcused absences on 7 and 8 July 1990. A return receipt shows that this letter was mailed to the applicant. j. Unsatisfactory Participation Checklist shows the applicant had nine unexcused absences from the unit training assemblies (UTAs). k. On 18 September 1990, he was reduced to SPC/E-4. l. On 21 September 1990, he was released from Company B, 2nd Battalion, 100th Regiment, 100th Training Group, by reason of unsatisfactory participation and he was transferred to the USAR Control Group (AT), St. Louis, MO under the authority of AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers). m. On 5 January 1993, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders D-01-300327 honorably discharging the applicant from the Ready Reserve on 5 January 1993. 4. At the time the applicant was released from his troop program unit (TPU) and reassignment to the USAR Control Group, the regulation provided that: a. A TPU or Individual Mobilization Augmentee (IMA) Soldier who has completed basic training and was not within 3 months of ETS (expiration term of service) who fails to participate satisfactorily per AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), chapter 4, section III, may be involuntarily reassigned to the appropriate control group of the IRR. b. Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings. c. Based on this being a reassignment and not a discharge, there was no characterization of service issued. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board recognizes the applicant’s problems with his ex-wife which caused him to miss some time in the Reserves. This does not excuse nine absences from duty though. Based on the applicant being reassigned and not a discharge, there was no characterization of service issued. The preponderance of evidence demonstrates that there was no error or injustice that exists as to the applicant’s military records. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. SIGNATURE: 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in effect at the time, prescribed policies and procedures governing the various types of service obligations and participation requirements. a. Paragraph 4-9 (conditions of unexcused absence) stated: (1) An unexcused absence is any absence not covered in sections II (excused absences) and IV (leave of absence). (2) Enlisted Soldiers who are obligated by statute or contract 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 * fail to attend or complete AT (3) Statutorily or contractually obligated enlisted Soldiers may be transferred to the IRR as soon as possible after the actions in paragraph 4-12a result in a determination that the Soldier is an unsatisfactory participant. b. Paragraph 4-12 (documentation of unexcused absences), it stated unit commanders will follow the procedures listed below. They will ensure that required documentary evidence is contained in the MPRJ (military personnel records jacket). (1) Notice of unexcused absence –– A prescribed letter of instructions- unexcused absence will be delivered to the Soldier. Delivery will be either in person or by certified mail, restricted delivery, return receipt requested, as follows: (a) After the fourth unexcused absence in a 12-month period. (b) After each succeeding unexcused absence, up to and including the ninth absence in a 12-month period. One letter will cover all unexcused absences from a MUTA (multiple unit training assembly). (2) Whether notices required are delivered in person or dispatched by certified mail, a copy of each notice and the following, as appropriate, will be placed in the Soldier's MPRJ. (a) When the notices are personally delivered, the Soldier's signature will be obtained on the file copy as acknowledgment of receipt. (b) When certified mail is used, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered. Mail refused, unclaimed, or otherwise not delivered may not be used as defense against unexcused absences when notices were correctly addressed to the latest official mail address, furnished to the unit by the Soldier. (c) The unit commander's statement showing his or her decision as to whether the reason, which prevented the Soldier from attending the ninth training assembly, was valid or an emergency. The facts or circumstances on which the decision is based will be included in the statement. (3) Enlisted Soldiers who are declared unsatisfactory participants may be transferred to the IRR. 3. AR 140-10 (Army National Guard and Army Reserve – Separation of Enlisted Personnel), effective 1 July 1990, established policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. It defines Ready Reserve Control Groups and the Selected Reserve. Detailed procedures are given for removing Soldiers from an active status. It also gives procedures for interservice transfer and selective retention of unit Soldiers. Paragraph 4-15, involuntary reassignment for unsatisfactory participation, stated a TPU or IMA Soldier who has completed basic training and is not within 3 months of ETS (expiration term of service) who fails to participate satisfactorily per AR 135-91, chapter 4, section III, may be reassigned to the appropriate control group of the IRR. This regulation, dated 1 October 1994, stated: a. A TPU or IMA Soldier who has completed basic IET (initial entry training) and been awarded an MOS (military occupational specialty) and is not within 3 months of ETS, who fails to participate satisfactorily per AR 135-91, chapter 4, section III, may be reassigned to the appropriate control group of the IRR. b. Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings per AR 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 AR 135-178. 4. AR 135-178 (Separation for Enlisted Personnel), dated 1 September 1994, established policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR). It implemented discharge proceedings for unsatisfactory participation under Chapter 13. Chapter 13 prescribed the procedures required to discharge ARNGUS and USAR Soldiers for unsatisfactory participation. a. A Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because (1) the Soldier is an unsatisfactory participant as prescribed by AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), chapter 4 and (2) attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier's verbal or written refusal to comply with the orders or correspondence; or a second notice, sent, by certified mail, was refused, unclaimed, or otherwise undelivered; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. b. Discharge action may be taken when the Soldier is not under military control in accordance with the provisions of paragraph 1-33 of this regulation. c. Commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a Soldier who may have committed serious misconduct the harsher penalties that may be imposed under the UCMJ d. The service of a Soldier discharged for unsatisfactory participation under this chapter will normally be characterized as under other than honorable conditions. If warranted by the Soldier's overall record, a characterization of service of under honorable conditions may be furnished subject to the provisions of the below paragraph. e. An honorable characterization of service is not authorized for a Soldier who has not completed entry level status unless the Soldier's record is otherwise so meritorious that any other characterization would clearly be inappropriate. In such cases, discharge for unsatisfactory participation with an honorable characterization will be approved by the discharge authority (as stipulated in paragraph 1-25). The separation authority will approve discharge with service characterized as honorable when an administrative board has recommended an honorable discharge. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20160013207 5 1