ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20170011869 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge to Honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Discharge Review Board (ADRB) Letter * 143rd Combat Support Command Sustainment Expeditionary, Orlando FL, Orders * Sergeant Major of the Army (SMA) Operation Smart Award * DD Form 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 his discharge was inequitable because it was based on an isolated incident, with no other adverse actions. During the drill weekend his grandfather’s funeral was held in Indiana. He requested the drill weekend off, through his chain of command, for the funeral. He was told he would be permitted the leave. Upon returning to next drill he learned that he was given an unexcused absence. He missed another drill later on and before the next drill weekend he received a letter stating that he was discharged for unexcused absences. 3. The applicant provides: a. A letter from the ADRB, dated 5 June 2019, which informed him that the regulations that govern the operations of the various Boards of the ADRB instruct that the staff may return an application if the applicant fails to complete or sign the application. b. Orders 09-300-00052, dated 27 October 2009 showing he was discharged effective 27 October 2009, and his characterization of service is under other than honorable conditions discharge. c. His SMA Operation Smart Award for outstanding performance and commitment to the SMA recruiting team on from 1 July 2009 through 30 September 2009. d. His DD Form 214 showing his service from 3 June 2005 to 21 December 2005, released from active duty for training and his characterization of service is honorable. 4. A review of his service record shows: a. Having had prior service in the Army Reserves (USAR) Delayed Entry Program he later attended the Regular Army Advanced Individual Training at Fort Leonard Wood, MO from 3 June 2005 through 21 December 2005. He was honorably discharged on 21 December 2005 b. On 7 March 2006, he was assigned to the 450th Ordnance Company, Medium Lift Platoon c. His record is void of the specific facts and circumstances surrounding the events which led to his discharge from the USAR. d. He was discharged as per Headquarters, 143rd Combat Support Command Sustainment Expeditionary, Orlando FL, Orders 09-300-00052, dated 27 October 2009 under the provisions of Army Regulation (AR) 135-178 (Enlisted Administrative Separation), for unsatisfactory participation on 27 October 2009. His characterization of service is under other than honorable conditions discharge. 5. The ADRB, by letter, on 6 April 2011, to the applicant in response to his request for correction of his military record. The ADRB stated that after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged and denied his request to change his character and/or reason of his discharge. 6. By regulation AR 135-178, 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. 7. 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 review of the application and all evidence, the Board determined relief is warranted. 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. The Board agreed an under honorable conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 amending Orders 09-300-0052, issued by Headquarters, 143D CS Command Sustainment Expeditionary, Orlando, FL, on 27 October 2009 to show his “Type of Discharge” as “Under Honorable Conditions (General).” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his discharge to Honorable. 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 135-178 (Enlisted Administrative Separations: Army National Guard and Army Reserve), sets policies, standards, and procedures to ensure the readiness and competency of the Army while providing for the orderly administrative separation of National Guard (NG) and (USAR) enlisted Soldiers. a. Paragraph 2-9a, 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, 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. 3. AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines NG and USAR service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. a. Paragraph 4–12, conditions of unexcused absence states: an unexcused absence is any absence not covered in sections II and IV, Soldiers will be charged with unsatisfactory participation when without proper authority they: (1) accrue in any one-year period a total of nine or more unexcused absences from scheduled inactive duty training (IDT), (2) fail to obtain a unit of assignment during a leave of absence granted or (3) fail to attend or complete annual training. b. Paragraph 4–15a, states that notice of unexcused absence(s) will be delivered to the Soldier by U.S. mail, as provided in paragraphs (1) and (2) below. If U.S. mail is used in lieu of delivery in person, the notice will be mailed during or immediately following the unit training assembly (UTA) or multiple unit training assemblies (MUTA) from which absent. (1) Unit Soldiers and IMAs who are required to perform 48 inactive duty training (IDT)s per year will be notified commencing with the fourth unexcused absence in a 12–month period and after each succeeding unexcused absence up to and including the ninth absence in that 12–month period which results in the determination of unsatisfactory participation. One letter will cover all unexcused absences from a MUTA. The first notification commencing with the fourth absence will be sent by certified mail, return receipt requested. The remaining notifications will be sent by first class mail. c. Paragraph 4-15b, states whether notices required by 4-15a above are delivered in person or sent by U.S. mail, a copy of each notice and the following, as appropriate, will be placed in the Soldier’s MPRJ. (1) When the notices are personally delivered, the Soldier’s signature will be obtained on the file copy as acknowledgment of receipt. (2) When certified mail is used, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered. Mail refused, unclaimed, or otherwise not delivered may not be used as defense against unexcused absences when notices were correctly addressed. (3) When first class mail is used, a copy of the notice and the envelope showing the notice was sent to the Soldier’s most recent mailing address. Also, for each such notice, the individual mailing the notice will prepare an affidavit of service by mail. Mail sent to the mailing address on file as provided by the Soldier, which is refused, unclaimed, or otherwise not delivered may not be used as a defense against unexcused absences when notices were correctly addressed to the address on file provided by the Soldier. (4) The commander’s statement showing his or her decision as to whether the reason which prevented the Soldier from attending the training assembly which resulted in a declaration of unsatisfactory participation was valid or an emergency. The facts or circumstances on which the decision is based will be included in the statement. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011869 4 1