ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170003479 APPLICANT REQUESTS: * an upgrade of his uncharacterized discharge * an appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certification of Military Service * DD for 214 (Certificate of Release or Discharge from Active Duty) 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 completed his committed service obligation, until his unit Company Bravo, 980th Engineer Battalion, Lubbock, TX was relocated to San Antonio, TX. He was residing in Brownfield, TX, his commanding officer stated that since the nearest duty station was more than 100 miles in distance, from his dwelling, he would not be required to travel that distance for drills; he would be reassigned to Individual Ready Reserve (IRR). He was not ready to end his military career, at that point, so he met with the commanding officer at the Midland, TX unit, to discuss a transfer to his unit. b. During this process, he moved back into his parents’ house and began working in the oilfields. Unfortunately, the transfer process was never completed, as he had a very serious motor vehicle accident that resulted in a shattered hip and pelvis, which required a web of metal strips to repair his injuries. He was not aware that there was an error on my DD 214, until 3 January 2017. He was trying to get the veteran status placed on his Texas driver’s license. He was told to bring his DD 214 as proof of a. service, which he did. The Texas department of public safety official told him that his discharge was uncharacterized and needed to be honorable. He was referred to the Seminole, TX veteran affairs (VA) officer for assistance in determining uncharacterized and find out what needed to be done to change the character of service. The VA officer told him that he needed to file a DD Form149, based on the time frame of his discharge. 3. The applicant provides a copy of his Certification of Military Service and a DA Form 4187(Personnel Action) for his advancement to P2/E-2 on 16 June 1990 and his DD Form 214, which shows his service from 14 November 1989 to 7 April 1990 with an uncharacterized entry level discharge. 4. A review of the applicant’s service record shows: a. He enlisted in the Army Reserve on 27 January 1989 for 8 years. b. His DA Form 2-1 (Personnel Qualification Record) shows that he was assigned to Company Bravo, 980th Engineer Battalion, Lubbock, TX from 27 January 1989 to 7 April 1990. c. On 8 June 1989, by memorandum to the United States Army Guidance Counselor, Amarillo, TX, subject: reschedule of physical and renegotiation of individual active duty training (IADT) dates for the applicant. It also stated, under normal circumstances, the applicant would be discharged since he was overweight at the time of shipping to IADT. However, no one was able to find his original physical with his status, therefore without documentation the unit was unable to initiate discharge proceedings. d. He had unexcused absences as shown on the memorandums of instruction from the 104th Quartermaster Company, Midland, TX stating that he was absent from scheduled unit training or multiple unit training assembly on: * 1-4, 18 &19 August 1990 * 15 &16 September 1990 * 1-7 April 1991, he was notified of his unexcused absences on 11 April 1991 * 1-5 May 1991, he was notified of his unexcused absences on 8 May 1991 * 1-4, 29 & 30 June 1991, he was notified of his unexcused absences on 3 June 1991 * 3 July 1991, he was notified of all of the above unexcused absences e. The commander, by letter, on 22 August 1991, informed the applicant that he incurred his 9th unexcused absence and that he reviewed the circumstances surrounding the absence. The applicant offered no cogent or emergency reason which prevented him from attending the drill, therefore he determined the 9th absence to be unexcused. a. f. His DD Form 214 shows that he was released from active duty for training on 7 April 1990. He holds the Military Occupational Specialty of Heavy Construction Equipment Operator. He was released under the provisions of chapter 4, Army Regulation (AR) 635-200 Personnel Separation – Enlisted Personnel for completion of term or service, SPD - LBK – expiration of term of Service. His character of service is uncharacterized. He had 4 months and 24 days of active service this period and 9 months 11 days prior inactive service. He had no lost time. 5. By regulation, a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Paragraph 3-9 states the Secretary of the Army, on a case-by- case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the government and Secretarial plenary authority. Paragraph 4-4, characterization of service states that a Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry level status and service is uncharacterized. 6. By regulation, paragraph 4-2h. states that for Army National Guard and Army Reserves Soldiers who successfully complete a period of IADT to which ordered, the service of Soldiers specified in this paragraph who are in entry level status will be uncharacterized, even though they have completed their IADT successfully. 7. 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. 8. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 1. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. The Board agreed the applicant completed MOS after being called for to AD to complete his initial entry training, and therefore should have an honorable characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 7 April 1990 showing his characterization of service as honorable. 6/25/2019 X CHAIRPERSON Signed by: 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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 3-9, states for entry level status separation. A separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status, except in the following circumstances: * when characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by the circumstances of the Case * the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the government and Secretarial plenary authority c. Paragraph 4-2h. states that for Army National Guard and Army Reserves Soldiers who successfully complete a period of IADT to which ordered, the service of Soldiers specified in this paragraph who are in entry level status will be uncharacterized, even though they have completed their IADT successfully (see para 3-9). When the Soldier is eligible for leave, early release may be authorized in lieu of leave for cogent reasons such as death or serious illness of a member of the trainee's immediate family. To warrant early release the reservist must have completed at least 12 weeks IADT, and the training benefits that would result from return to the training center upon completion of leave are not substantial enough to justify return to duty in lieu of early discharge from IADT. 3. 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 1. 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. 4. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//