ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180002381 APPLICANT REQUESTS: reinstatement of his promotion to Specialist (SPC/E-4). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Statement in Support of Claim) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction of DD Form 214) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * Standard Form 600 (Chronological Record of Medical Care) * DA Form 2823 (Sworn Statement) * Final Line of Determination Memorandum * DA Form 2173 (Statement of Medical Examination and Duty Status) * Unexcused Absence Letters * Western Union Mailgram * Certificate of Appreciation 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 that he would like his promotion to Specialist to be reinstated. In June of 1988, he sustained a back injury while participating in a physical fitness test. After later receiving treatment for this injury he returned to his unit and attempted to continue to perform his required duties, with little resolve. He informed his leadership that he intended to file a claim for the injuries that he sustained, but was discouraged to do so. He then sought the assistance of a Veterans Service Officer who advised him that if the injuries that he sustained aggravated him, to not return to training, instead he should retain additional documentation from his physician to support his claim. A week later his injuries worsened ultimately resulting in him missing several months of training. His civilian job was also impacted by this injury. At a date undefined, he met with several members of his leadership to discuss the missed training events. He expressed his intent to continue with his injury claim. He was then informed that he would either be medically or dishonorably discharged since he was unable to attend drill. He was also told that he would have to pay back the reenlistment bonus that he received. After October 1989, he was reduced to Private First Class (PFC) and transferred into the Individual Ready Reserve. He then received a disability rating of 20 percent from the Veterans Administration. In 1990 he was recalled to active duty in support of Operation Desert Storm. Upon completion of the training that he received during that time, he thought that his promotion to SPC would be reinstated, but it was not. 3. The applicant provides a: * DD Form 214, dated 15 March 1991 – reflecting the rank of PFC, 1 month and 14 days of active service during this period * DD Form 215, dated 10 December 1991 – reflecting changes to several non-rank or pay grade related items on his 15 March 1991 DD Form 214 * DA Form 4836, dated 5 August 1987 – reflecting his extension of service until 31 August 1993 * Standard Form 600, dated 9 June 1988 – reflecting treatment for a preexisting condition * DA Form 2823, dated 13 August 1988 – reflecting the statement provided by Specialist B_S_ wherein he provides his account of the injury sustained by the applicant during physical training on 29 May 1988 * Final Line of Duty Determination Memorandum, dated 27 September 1988 – reflecting an approved line of duty determination * DA Form 2173, dated 13 August 1988 – reflecting the commanders determination that the injury was sustained in the line of duty * Unexcused Absence Letters for the following periods: 9-10 September 1989 (19 unexcused absences) 14-15 October 1989 (23 unexcused absences) 11-12 November 1989 (12 unexcused absences) which all state: o Absences from training assemblies may be excused only for reasons of sickness, injury, emergency or other circumstance beyond the member’s control o If absence is due to one of the reasons listed, the member must furnish the unit an appropriate affidavit or certification by a doctor, medical officer or other person(s) having specific knowledge of the emergency or circumstance, requesting that it be excused o A member’s absence cannot be excused unless the request and affidavit or certificate, are received within 15 days of the date of receipt of the letter * Western Union Mailgram, dated 20 January 1991 – ordering him to active duty on 31 January 1991 at the rank of PFC * Certificate of Appreciation, dated 14 March 1991 – recognizing him for his service in support of Operation Desert Storm from 20 January to 12 March 1991 4. A review of the applicant’s service records shows the following on: * 1 September 1984 – he enlisted in the Army National Guard * 12 April 1985 – he was promoted to Private Second Class (PV2/E-2) * 12 August 1985 – he was promoted to PFC * 13 May 1986 – he was promoted to SPC * 2 June 1986 – he was advised by the commander that if he was absent from annual training, he would be charged with being absent without leave (AWOL) * 3 June – 17 June 1989 – he was absent from annual training (17 unexcused absences accrued) * 10 July 1989 (Order# 15-1) – he was reduced to PFC for misconduct as a result of him being AWOL during annual training * 9 September 1989 – separation action was initiated for unsatisfactory participation and termination of his reenlistment bonus was put in place * 12 January 1990 – he was discharged from the Army National Guard and transferred into the Army Reserve Control Group (Annual Training) * 19 January 1990 (Order# C-12-040647) – he was released from the Army Reserve Control Group (Annual Training) and transferred into the Army Reserve Control Group (Reinforcement) * 31 January 1991 (Order# M-12-165225) – he was mobilized at the rank of PFC * 31 March 1991 (Order# 54-156) – he was released from mobilization * 31 August 1993 (Order# D-08-373485) – he was honorably discharged from the Reserve 5. Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures) states that when it is determined that an Army National Guard Soldier is an unsatisfactory participant, the immediate commander will initiate proceedings that result in reassignment, transfer or separation of the unsatisfactory participant. The commander may also consider grade reduction for inefficiency as stated in AR 140-158 (Enlisted Personnel Classification, Promotion and Reduction). 6. Paragraph 4-9 (Unexcused Absences) states that Soldiers will be charged with unsatisfactory participation when without proper authority that fail to attend or complete annual training. It further states that accumulation of 9 or more unexcused absences in 1 year will be considered as unsatisfactory participation. 7. Paragraph 4-13 (Unexcused Absence from Annual Training) states that any action to be taken against a Soldier AWOL during the Annual Training (AT) period will be at the discretion of the commander. It will be based on the number of days absent and the Soldier's attendance and manner of performance during the regular drill year. A Soldier present on the reporting and ending dates of AT orders who was AWOL for 1 or more days during the AT period maybe declared an unsatisfactory participant and transferred into the IRR. 8. AR 140-158 defines Inefficiency as a demonstration by an individual of distinctive characteristics which show the inability to perform the duties and responsibilities of the grade and MOS. It may also include any act or conduct which clearly shows the Soldier lacks those abilities and qualities required and expected of a person of that grade and experience. Further stated within this guidance is that a Soldier may be reduced when ordered to active duty for training. A Corporal/Specialist or higher will be administratively reduced to PFC by the reduction authority when ordered to active duty for training. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement regarding an injury and his absence from drill, the notifications of missed periods of drill, the record of non-judicial punishment that reduced his rank to PFC, his period of mobilization and his rank upon separation. The Board found no evidence that the applicant provided his unit the requested medical documentation for his absences and he provided none to this Board. The Board did not find evidence of an error or injustice related to his reduction and determined that the rank on the DD Form 214 was accurate; no correction is required. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures) states that when it is determined that an Army National Guard Soldier is an unsatisfactory participant, the immediate commander will initiate proceedings that result in reassignment, transfer or separation of the unsatisfactory participant. The commander may also consider grade reduction for inefficiency as stated in AR 140-158 (Enlisted Personnel Classification, Promotion and Reduction). 3. Paragraph 4-9 (Unexcused Absences) states that Soldiers will be charged with unsatisfactory participation when without proper authority that fail to attend or complete annual training. It further states that accumulation of 9 or more unexcused absences in 1 year will be considered as unsatisfactory participation. 4. Paragraph 4-13 (Unexcused Absence from Annual Training) states that any action to be taken against a Soldier AWOL during the Annual Training (AT) period will be at the discretion of the commander. It will be based on the number of days absent and the Soldier's attendance and manner of performance during the regular drill year. A Soldier present on the reporting and ending dates of AT orders who was AWOL for 1 or more days during the AT period maybe declared an unsatisfactory participant and transferred into the IRR. 5. AR 140-158 defines Inefficiency as a demonstration by an individual of distinctive characteristics which show the inability to perform the duties and responsibilities of the grade and MOS. It may also include any act or conduct which clearly shows the Soldier lacks those abilities and qualities required and expected of a person of that grade and experience. Further stated within this guidance is that a Soldier may be reduced when ordered to active duty for training. A Corporal/Specialist or higher will be administratively reduced to PFC by the reduction authority when ordered to active duty for training. ABCMR Record of Proceedings (cont) AR20180002381 4 1