BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20190001016 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal 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 (ABCMR) 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: a. He received his military personnel record from the National Personnel Records Center on 21 November 2018. Enclosed was a letter from the U.S. Army Reserve (USAR), dated 1 September 1984, which stated he was discharged UOTHC. b. He told his lieutenant numerous times about the problem he was having with his right knee. He received the injury while training at Fort Leonard Wood, MO and he never received proper treatment. His lieutenant directed him not to report back to duty because he was being put in the inactive Reserve. c. He never received any orders, nor had he ever received that letter informing him of his discharge status (dated 1 September 1984). He never request to be discharged from the Reserve, he only requested to have his right knee treated. He is requesting that his discharge be upgraded so he can receive treatment for the right knee injury he received when he was in advanced individual training (AIT). 3. The applicant enlisted in the USAR on 27 June 1978. He was ordered to active duty for training effective 30 June 1978. 4. The applicant completed basic combat training and AIT and was awarded military occupational specialty (MOS) 51R (Electrician). He was released from active duty on 18 October 1978 and was returned to the control of his USAR troop program unit of assignment. 5. The applicant was reassigned on 8 November 1978 to the 139th General Hospital in Patton, Bell, CA. He was reassigned on 1 February 1980 to the 705th Transportation Company in Dayton, OH. 6. A Letter of Instruction (LOI) – Unexcused Absence, dated 18 September 1980, shows the applicant was notified that the unit attendance records revealed he had been absent from the scheduled unit training on 13 and 14 September 1980. He was informed of the following: * under the provisions of Army Regulation 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), he was required to attend all scheduled unit training assemblies and annual training periods * he was required participate in a satisfactory manner with regard to proper military appearance and performance of assigned duties * unless the absences were excused, he would have accumulated six unexcused absence with a one year period * absences from training may be excused only for reasons of sickness, injury, emergency, or other circumstances beyond his control * if his absences were due to one of the stated reasons, he should furnish the unit an appropriate affidavit or certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency or circumstances, requesting they be excused * his absences could not be excused unless his request and affidavit or certificate were received within 15 days of the date he received the LOI * if he accumulated nine unexcused absences within a one year period, he could be declared an unsatisfactory participant * if he were to be declared an unsatisfactory participant, a board of officers would be convened to consider the circumstances and to make appropriate recommendations * the board may recommend might recommend immediate discharge UOTHC or transfer to the Individual Ready Reserve (IRR) for the balance of his statutory service obligation at which time, he would be discharged, normally UOTHC * the next scheduled training assembly for the unit was 4 October 1980 7. An LOI – Unexcused Absence was mailed to the applicant on 23 October 1980, informing him that he had accumulated 10 unexcused absences within a one year period. He also received a Notice of Unsatisfactory Participation. He was told a recommendation would be made that his case be considered by a board of officers and that the board would considered whether he should be discharged immediately or whether discharge should be delayed until his statutory military service obligation was completed. He was told that if he was separated, his service might be characterized as UOTHC. The LOI states that action would be suspended for 45 days to provide him the opportunity to consult with counsel. 8. The applicant's commanding officer submitted a request for separation on 8 January 1981, for misconduct due to unsatisfactory participation. He was told that his request met the regulatory requirements for a board of officers and since the applicant was being boarded in absentia, no further written notice to the applicant was required. 9. A board of officers convened on 25 April 1981 and the board determined that the applicant should be transferred to the IRR because of misconduct (unsatisfactory participation) with a tentative characterization of service of UOTHC. 10. Orders 122-186, issued by Headquarters, Fifth United States Army, Fort Sam Houston, TX on 24 June 1981, released the applicant from the 705th Transportation Company, by reason of unsatisfactory participation, and assigned him to the USAR Control Group (Annual Training). His service was characterized as UOTHC. 11. Orders Number D-09-908055, issued by USAR Personnel Center (ARPERCEN) on 1 September 1984, discharged the applicant from the USAR under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations). His service was characterized as UOTHC. 12. 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 administration of Army National Guard of the United States and the USAR enlisted Soldiers for a variety of reasons. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 135-178, establishes policies, standards, and procedures governing the administrative separations of certain enlisted Soldiers of the Army National Guard of the United States and the USAR. a. Paragraph 2-9a states that an honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would clearly be inappropriate. b. Paragraph 2-9b states if a Soldier's service has been honest and faithful, it is appropriate characterize that service under honorable conditions. Characterization of service as a general (under honorable conditions) is warrant when significant negative aspect of the Soldiers conduct or performance of duty outweighs positive aspects of the Soldier's military record. c. Chapter 13 states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed by AR 135-91, chapter 4 and 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. Discharge action may be taken when the soldier cannot be located or is absent in the hands of civil authorities. Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines in chapter 2, section III. For soldiers who have completed entry level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. In such cases, separation for unsatisfactory participation with an honorable characterization will be approved by the separation authority. As an exception, the separation authority will approve separation with service characterized as honorable when an administrative separation board has recommended such characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001016 4 ABCMR Record of Proceedings (cont) AR20190001016 1