ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20170004564


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions discharge to general under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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.  A review of the applicant’s service records shows:

	a.  He enlisted in the U. S. Army Reserve (USAR) on 21 November 1979

	b.  He entered active duty for training (ADT) on 6 April 1980.  He completed the required training for award of military occupational specialty 36K (Tactical Wire Operations Specialist).

	c.  He received nonjudicial punishment on 25 July on/for

* absent without leave (AWOL) from 9 July 1980 to 11 July 1980
* wrongfully communicate a threat on 17 July 1980

	d.  On 13 August 1980, he was released from ADT to the control of his USAR unit.  His DD Form 214 shows he was released from active duty in accordance with chapter 5-15 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), due to completion of required active service.  He was assigned an honorable discharge.

	e.  On 12 March 1981 his Commander declared the applicant an unsatisfactory participant and initiate action to separate the applicant from this unit for misconduct under the provisions of section 7, chapter 7, Army regulation (AR) 135-178 (ARNG and Army Reserve – Enlisted Administrative Separations). 

	f.  On 12 March 1981, his commander suspended action for 45 days to give the applicant time to consult with counsel.

	g.  On 19 June 1981 the commander spoke with counsel to confirm if the applicant contacted him.  Regarding his notification of unsatisfactory participation in the USAR.  Major Q indicated that he had not been contacted by the applicant.  Acknowledgement
of PV2 P notification to his legal counsel was required by 27 April 1981.

	h. The circumstances and events surrounding the time between 20 June 1981 and 19 November 1985 are unavailable for review.  However on 20 November 1985, the separation authority approved his discharge in accordance with Army Regulation 135-178, with a under other than honorable conditions characterization of service 

3.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

4.  Army Regulation 135-178, provides for the separation of enlisted personnel of the USAR and ARNG.  Section VII of chapter 7 of this regulation prescribes the procedures for separation of enlisted members of the USAR for misconduct including by reason of unsatisfactory participation of statutory obligated members

5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Although a large portion of the applicant’s service record was unavailable for review, based upon the the short term of honorable service completed prior to a pattern of misconduct, which included violent threats towards others, the Board concluded that there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the applicant’s characterization of service.


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.
	 
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.


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 135-91 (ARNG and USAR Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), states a Soldier is an unsatisfactory participant when 9 or more unexcused absences from scheduled inactive duty training occur during a 1-year period.  Unless an absence is authorized, a Soldier failing to attend a scheduled drill will be charged with an unexcused absence.  When absence involves a MUTA, or any portion of a MUTA, the charge will be one unexcused absence for each 4-hour period not attended, but not to exceed four unexcused absences.  Unexcused absences remain charged to the Soldier on reassignment or reenlistment in another Reserve Component unit.

2.  Army Regulation 135-178, provides for the separation of enlisted personnel of the USAR and ARNG.  Section VII of chapter 7 of this regulation prescribes the procedures for separation of enlisted members of the USAR for misconduct including by reason of unsatisfactory participation of statutory obligated members.  It states:

	a.  All members separated under this section who have not completed their statutory obligation will be transferred to the IRR to complete that obligation.

	b.  When a member of a troop program unit has accrued 9 or more unexcused absences during a 12-month period, the unit commander will notify the member in writing of the proposed separation, his/her rights, and the proposed characterization of service, allowing 45 days for a reply.  Reasonable effort should be made to furnish this notification to the member through personal contact by a member of the command.  If such effort is unsuccessful, the notification will be mailed to the member by certified mail.

	c.  If the mail is returned as unclaimed or undeliverable or the member receipts for the notification but fails to respond, such action will constitute a waiver of the member's right to a hearing before a board of officers.  The separation authority may then proceed with appropriate action.

	d.  When transfer to the IRR has been approved, the separation authority will issue orders transferring the member to the USAR Control Group (Annual Training) with the approved tentative characterization of service shown under the additional instructions.

	e.  A member who is transferred to the IRR under this section with a tentative characterization of service of less than honorable normally will be discharged at the expiration of his/her statutory service obligation with that characterization.  However, he/she may earn a higher characterization of service at the expiration of his/her statutory service obligation by rejoining the same or another USAR unit and participating satisfactorily for the remainder of his/her service obligation, but no less than 12 months or volunteering for and serving satisfactorily on a tour of at least 45 days active duty for training.

	f.  An honorable discharge is a separation from the U.S. Army with honor.  It is conditioned upon proper military behavior and proficient and industrious performance of duty.

	g.  A general discharge is a separation under honorable conditions of an enlisted member whose military record is not sufficiently meritorious to warrant an honorable discharge.  

	h.  An under other than honorable conditions discharge is an administrative separation under conditions other than honorable.  It may be issued for misconduct.  

ABCMR Record of Proceedings (cont)	 AR20170004564


4


1