ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  13 May 2019

	DOCKET NUMBER:  AR20160019393


APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge

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.  The applicant states:

     a.  He missed one meeting because of a break-in at his home, after he moved in.  He says that the unit said they could not reach him by phone or address, but they had his father-in-laws home address which is where all of the discharge correspondence came.  At the time, he and his father-in-law lived in the same apartment complex.  

     b.  He also states that he knows it’s kind of late, but he did not know he was not considered a veteran.  He is now older and needs his medical benefits and that is how he found out he is not a veteran.  He did what he was supposed to do while he served and it was only one meeting he missed and he did call in, but was told it was too late, because they had already processed his discharge.  The following week he did receive his discharge in the mail, but did not realize that it was not an honorable discharge or he would have protested at the time.  He knows that he was young and dumb, but is now asking for help.  He does not want to have this over his head, knowing that in 6 years he never got into any trouble and believes he was a good Soldier and was on his way to being promoted to Sergeant/E-5.  He also says that he had just moved into town and this was his second meeting with this unit and the apartment that he was living in was in a very bad neighborhood.  When it was broken into, everything was taken, so he had to make another move, but he communicated that with his unit.  He did not realized the implications of the general, under honorable conditions discharge and thought at the time that he was ok.

3.  A review of the applicant’s record shows:

	a.  He enlisted in the United States Army Reserves (USAR) on 1 May 1975.

	b.  On 2 April 1979, the first of four Letters of Instructions for Unexcused Absence was mailed to the applicant.  Each letter was returned marked “not deliverable as addressed and unable to forward”.

	c.  On 18 August 1980 a Notice of Unsatisfactory Participation under Army Regulation (AR) 135-91(Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), and AR 135-178 (Army National Guard and Army Reserve Separation of Enlisted Personnel) was mailed to the applicant.  This letter was returned marked “not deliverable as addressed and unable to forward”.

	d.  On 18 August 1980, the applicant’s immediate commander sent notification of his intent to initiate action to discharge him under the provisions of AR 135-178, declaring misconduct due to unsatisfactory participation.  He recommended that he be furnished a general discharge certificate.

	e.  On 10 November 1980, the commander recommended that applicant be separated under the provisions of AR 135-91, paragraph 4—11, for misconduct due to unsatisfactory participation.

	f.  Consistent with the commander’s recommendation, under the provisions of AR 135-91, the separation authority approved the separation and directed the issuance of a general, under honorable conditions, discharge.

	g.  Discharge orders were sent with an effective date of 30 April 1981.  

4.  By regulation, AR 135-91, unexcused absence from unit training assemblies, states that a member fails to participate satisfactorily when he accrues in any 1 year period a total of 9 or more unexcused absences from scheduled unit training.  

5.  By regulation, AR 135-178, prescribes the policies, criteria, and procedures which apply to separation of enlisted members of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR).  

6.  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.  Based upon the multiple unexcused absences of the applicant and the applicant receiving an Under Honorable Conditions (General) discharge certificate at the time of discharge, the Board concluded there was no error or injustice which warranted correction to the record.

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 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in effect at the time, defines the ARNG and USAR service obligations and prescribes policies and procedures governing methods of fulfillment, satisfactory participation and enforcement.

	a.  Paragraph 4-11a Unexcused absence from unit training assemblies, states that a member fails to participate satisfactorily when he accrues in any 1 year period a total of 9 or more unexcused absences from scheduled unit training assemblies as computed in b and c below.

	b.  Charging unexcused absences.  Unless an absence is authorized, a member who fails to attend a scheduled single unit training assembly (UTA) or multiple unit training assembly (MUTA) will be charged with an unexcused absence. 

	c.  Establishing the 1-year period.  For counting unexcused absences, the 1-year period will begin on the date of the training assembly from which the member is absent and will end 1 year later. Beginning dates will be established from each succeeding unexcused absence. When longer than 1 year elapses from the date of such absence, it no longer will be counted and the new I-year period will begin on the date of the subsequent absence, if any. 

3.  Army Regulation 135-178, in effect at the time, prescribes the policies, criteria, and procedures which apply to separation of enlisted members of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except the separation of enlisted members serving on active duty (AD) will be governed by appropriate Active component regulations and the separation of enlisted members serving on Initial Active Duty for Training under the Reserve Enlistment Program of 1963 (REP-63) will be governed by appropriate active component regulations.

	a.  Paragraph 1-10b (1) Honorable Discharge Certificate (DD Form 256A).  An honorable discharge is a separation from the United States Army with honor.  The issuance of an honorable discharge is conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the member concerned.

	b.  Paragraph 1-10B (2) General Discharge Certificate (DD Form 257A).  A general discharge is a separation from the United States Army under honorable conditions of an enlisted member whose military record is not sufficiently meritorious to warrant an honorable discharge.  When an enlisted member’s service is characterized as general, except when discharge by reason of misconduct or unsuitability, the specific basis for such discharge will be included in the enlisted member’s personnel records.

	c.  Paragraph 3-6a of this chapter is failure or refusal or non-obligated enlisted members to accept or comply with official orders or correspondence or to satisfactorily participate in required training. USAR non obligated enlisted members will be discharged when:

* they fail to participate satisfactorily in required training (AR 135-90) or fail to earn sufficient retirement points (AR140-10)
* they refuse or fail to reply to or accept official correspondence, comply with official travel orders or to complete and return forms required by pertinent regulations.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

ABCMR Record of Proceedings (cont)	 AR20160019393
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