BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001345 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001345 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. ____________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. BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001345 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 an upgrade of his discharge under other than honorable conditions to honorable or under honorable conditions (general). 2. The applicant, in effect, states: a. He was discharged from the U.S. Army Reserve (USAR) on 11 June 2009 under other than honorable conditions for unsatisfactory participation in the Ready Reserve, which he feels is an inequity and his discharge deserves to be upgraded. b. On 16 March 2009, he entered the Cook County Department of Corrections (CCDOC) Academy in Chicago, Illinois. Prior to attending, he was actively drilling with his unit and was in a position of trust as the unit armorer. He informed his supervisor that he would not be able to attend battle assemblies during the time due to training. He was told his attendance would be coded as "excused" by the unit. While at the corrections academy, he did not received any telephone calls, email, or notices of unexcused absences via the postal service. He had no reason to believe he was not being excused from training as suggested by his supervisor. c. On 17 June 2009, he graduated from the corrections academy. He was planning to attend the July battle assembly when he received an email from the unit administrator of the 863rd Engineer Company with an attachment containing his discharge orders that separated him from the USAR. He also received orders reducing him in rank/grade from specialist (SPC)/E-4 to private (PV1)/E-1. d. After his discharge, he continued to work for the CCDOC until August 2012. He was then hired as a correctional officer with the Federal Bureau of Prisons (FBOP) at the Federal Correctional Institution (FPI) at Herlong, CA. He was selected over his peers and transferred to food service as a cook supervisor and placed on the Disturbance Control Team. He also received multiple awards for performance and successful or excellent annual evaluations. e. If his discharge is upgraded, he desires to reenter the military service and better provide for his wife and children. He has actively sought out a unit that will accept him (426th Civil Affairs Battalion). This unit is fully aware of his current discharge status. 3. The applicant provides: * a three-page typed statement * State of Illinois Certificate of Marriage, dated 16 June 2007 * Orders 09-162-00005 issued by Headquarters, 416th Theater Engineer Command, Darien, IL, on 11 June 2009 * Orders 09-162-00006 issued by Headquarters, 416th Theater Engineer Command, Darien, IL, on 11 June 2009 * seven Cook County Department of Corrections documents * Federal Bureau of Prisons Evaluations and Awards documents * four Character Reference Letters * AHRC Form 249-E (Chronological Statement of Retirement Points) with associated documents 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 enlisted in the USAR on 2 September 2004. Following the completion of his initial entry training, he was awarded military occupational specialist 92G (Food Service Specialist). His expiration term of service (ETS) date was established as 1 September 2012. 3. Orders 09-162-00005 issued by Headquarters, 416th Theater Engineer Command, on 11 June 2009 directed his reduction from the rank/grade of SPC/E-4 to PV1/E-1 effective 11 June 2009. 4. The specific facts and circumstances surrounding the applicant's discharge are not available for review. However, Orders 009-162-00006 issued by Headquarters, 416th Theater Engineer Command, on 11 June 2009, show: * he was serving in the rank/grade of PV1/E-1 on the date of his discharge and he was assigned to the 863rd Engineer Company in Darien, IL * he was discharged under the provisions of Army Regulation 135-178 (Army National Guard (ARNG) and Army Reserve – Enlisted Administrative Separations), chapter 13 (Unsatisfactory Participation in the Ready Reserve) * he was discharged effective 11 June 2009 * his service was characterized as under other than honorable conditions 5. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. The ADRB determined he was properly and equitably discharged and denied his request on 9 January 2015. 6. The applicant provides the following evidence in support of his request: a. His State of Illinois Certificate of Marriage, as proof that he was married on 16 June 2007. b. Seven Cook County Department of Corrections documents show he attended the CCDOC Basic Training Course from 16 March 2009 through 26 June 2009. These documents include his certification document as a county corrections officer and four training certificates dated from May to June 2009. These documents show he was separated as a corrections officer on 17 October 2012. c. Nine evaluation and awards documents establish his employment, his evaluation periods, and his incentive awards received during Calendar Year 2015 with the Federal Bureau of Prisons. d. Three character-reference letters, dated 27 April, 19 July, and 24 October 2015, from members of the Federal Bureau of Prisons attest to his hard-working and professional work ethic and his ability to effectively communicate with both inmates and co-workers. e. One character reference letter, dated 20 October 2015, from the first sergeant of Bravo Company, 426th Civil Affairs Battalion, Upland, CA, recommends the applicant receive a change to his current discharge type. This individual notes the applicant was discharged for unsatisfactory participation; he received over 12 consecutive unsatisfactory multiple unit training assemblies over a 3-month period. He further notes that if the applicant receives a discharge upgrade, he would work with a recruiter to get the applicant assigned to his unit. f. A copy of the applicant's Chronological Statement of Retirement Points documents his qualifying points for retirement. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. 2. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures) provides guidance governing absences from Ready Reserve training for enlisted personnel of the ARNG. a. A Soldier becomes an unsatisfactory participant when he has accrued nine or more unexcused absences from scheduled drills during a 1-year period. b. After accruing four unexcused absences in a 1-year period, the unit commander is required to notify the Soldier via a prescribed letter of instructions – unexcused absence. The delivery of this notice will be either in person or by certified mail, restricted delivery, return receipt requested. After each additional unexcused absence in a 1-year period, the Solder will receive a similar letter of instructions. Each of these notices will be filed in the Soldier’s military personnel records. 3. 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. a. Paragraph 2-9a states an honorable characterization is appropriate when the quality of the Soldier’s 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 be clearly inappropriate. b. Paragraph 2-9b states that if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 2-9c states service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. d. 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: (1) the Soldier is an unsatisfactory participant as prescribed by Army Regulation 135-91, chapter 4, and (2) attempts to have the Soldier respond or comply with orders or correspondence have resulted in: * the Soldier’s refusal to comply with orders or correspondence * a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable * verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed * discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities * 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 (3) Characterization of service normally will be under other than honorable conditions. 4. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-15 (Other Reasons for Reduction), states that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade. Further board action is not required for this reduction. DISCUSSION: 1. The applicant's request for an upgrade of his discharge under other than honorable conditions to either an under honorable conditions (general) discharge or an honorable discharge, was carefully considered. 2. The applicant's record is void of the specific facts and circumstances surrounding his discharge. However, the available evidence shows he was discharged from the USAR for unsatisfactory participation. Therefore, it appears his USAR discharge resulted from his inability or unwillingness to attend his monthly scheduled drills/battle assemblies as outlined in applicable regulations for such a discharge. 3. He attended a civilian corrections academy from March 2009 through June 2009 to become a corrections officer. He contends he told his supervisor that he would not be able to attend his drills/battle assemblies throughout that time frame. In accordance with applicable regulations, his chain of command would have notified him via different communication means of his absences before getting to the point of his eventual discharge. 4. Based on the unavailability of his complete discharge proceedings, government regularity must be presumed in this case. It is also presumed that all the requirements of law and regulation were met and his rights were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed his USAR discharge accurately reflects his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001345 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001345 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2