ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20170006587 APPLICANT REQUESTS: to upgrade his other than honorable (OTH) conditions discharge to either a general, under honorable or honorable 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) * Self-Authored Letter * Associate of Applied Science Degree * Paramedic Certification * Emergency Medical Services (EMS) Instructor Certification * Advanced Cardiac Life Support (ACLS) Instructor/Basic Life Support (BLS) Instructor/Emergency Medical Technician (EMT) Cards * Military Personnel Record (MPR) Registry Record 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 he was discharged from 2nd Battalion, 58th Aviation Regiment (2-58 AV Regt.), Fort Rucker, AL. When discharged he was attending his second advanced individual training. He was told by a sergeant at his unit if he did not pass his next Army physical fitness test (APFT) he would be discharged and not able to finish his class work. He was aware he would not pass the APFT and when he did not he assumed he was being discharged. He returned his gear to the unit and was notified he was being discharged. He was unaware he would receive an OTH. a. When he got back into shape, he attempted to reenlist in the Regular Army and was told he could not because of his OTH discharge. He has attempted to get documents to support the discharge and the unit could not produce any. The unit stated the documents have been misplaced and it was not their problem. He requested his file from the National Archives and Records Administration (NARA) and nothing was included from the unit. He would like to reenlist and understand the mess is his fault. b. He is requesting an upgrade so he can reenlist. He has submitted this request twice before and he does not want to give up on being able to have a military career. He has checked every place he knows to get as much documentation as possible. He has written his Senator, NARA, and the unit multiple times. His Senator’s office was unable to find any documentation in support of the discharge either. c. Since being discharged, he has obtained an Associates in Applied Science as a paramedic. He is the director of training at an ambulance service and teach part-time. He has been married for 5 years and has a daughter. His wife is supportive of him returning to service and has encouraged him not to give up on attempting to reenlist. 3. The applicant provides his Associate of Applied Science Degree, Paramedic Certification, EMS Instructor Certification, ACLS Instructor card, BLS Instructor card, and EMT card which show his continued improvement/advancement in training and education since he was discharged from the military. In addition, a printout from the MPR Registry Record, dated 21 April 2017, which shows no records were available on the applicant. 4. A review of the applicant’s service record shows: a. The complete facts and circumstances surrounding his enlistment in the Army National Guard (ARNG) are not available for the Board to review. However, Annex E to DD Form 4 (Enlistment Bonus Addendum), dated 23 February 2006, shows the applicant enlisted under the split training option as a 19D (Calvary Scout) which offered a $15,000 bonus since it was considered a critical military occupational specialty. b. On 9 June 2006, he was promoted to private first class (PFC)/E-3. c. On 5 October 2006, he was released from active duty for completion of required active service, and issued an honorable discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he completed 3 months and 29 days of active service. It also shows he was awarded or was authorized the National Defense Service Medal and the Army Service Ribbon. d. On 5 February 2007, he was reduced in rank from PFC to private/E-2 for inefficiency. e. On 3 March 2007, he was discharged from the ARNG under the provisions of NGR 600-200 (Personnel – General – Enlisted Personnel Management), paragraph 8-35j for unsatisfactory participation. He was issued an honorable discharge. f. The complete facts and circumstances surrounding his subsequent enlistment in the U.S. Army Reserve (USAR) are unavailable for the Board to review. However, on 23 June 2008, he was voluntarily transferred from the USAR Control Group (AT) to the 2-58 AV Regt. g. The complete facts and circumstances surrounding this discharge from the USAR are unavailable for the Board to review. However, on 20 May 2009, he was discharged for the USAR under the provisions of AR 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) with an OTH conditions discharge. h. On 21 June 2011, the Case Management Division of the Army Review Boards Agency administratively closed his request to upgrade his OTH discharge. It was administratively closed because a review of his official military personnel file failed to shows his DD Form 214 or separation (with attached separation proceedings). i. On 7 August 2012, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. By regulation service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security reasons. 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 for consideration of discharge upgrade requests, the Board found relief was not warranted. The Board considered the applicant's statement and statement regarding post-service accomplishments as well as the absence of documents regarding his separation. Based upon a preponderance of evidence, to include the short term of honorable service completed prior to the first sign of misconduct, as well as the lack of other documentary evidence to show the cause for separation (such as the separation packet), the Board concluded there was insufficient evidence to show that an error or injustice was present which would warrant changing the characterization of service of the applicant. The Board did wish to inform the applicant that if the he can provide documentary evidence providing the reasons for separation and in addition to his statements above, he may reapply to the Board for reconsideration. 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. 11/13/2019 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 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 (Army National Guard and Army Reserve – Enlisted Administrative Separations), in effect at the time, 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 U.S. Army Reserve enlisted Soldiers for a variety of reasons. a. Paragraph 2-9a (Honorable) 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 (General (under honorable conditions)) states 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. c. Paragraph 2-9c (Under other than honorable conditions) states service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security reasons. 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 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. NOTHING FOLLOWS