ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20170013091 APPLICANT REQUESTS: an upgrade of his uncharacterized discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * NGB Form 22 (Report of Separation and Record of Service) * Congressional inquiry correspondence 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 he did not have all his service time completed until he was discharged from the Army National Guard. At the time the DD Form 214 was issued, he had only completed his basic training and advanced individual training. 3. The applicant provides: a. A self-authored statement, which states he is trying to get his discharged status changed for New York State retirement system, where he is employed and can get his service credited; however, the State will not accept his DD Form 214 with the uncharacterized character of service. b. His DD Form 214, which shows his service from 6 July 1982 to 16 November 1982. c. His NGB Form 22, which shows his service from 20 November 1981 to 19 November 1987. d. The congressional correspondences seeking assistance of Syracuse District office congressman X__ X__ in upgrading his uncharacterized discharge. 4. The military personnel records are not available for review by the Board and Personnel Electronic Records Management System (iPERMS) records are not applicable for his service dates. a. The DD Form 214 provided by the applicant, shows he entered the Regular Army on 6 July 1982, he was assigned to Company Alpha, 2nd Battalion, 5th Training Brigade, Fort Dix, NJ. He completed eight weeks of basic training and advanced individual training and was awarded the Military Occupational Specialty (MOS) 64C (Motor Transport Driver). b. He was on released on 16 November 1982, under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), paragraph 16-9a and b, for Reserve Component personnel upon completion of MOS training or early release of retention control point. His characterization is uncharacterized. He completed 4 months and 11 days of net active service this period and 7 months and 16 days prior inactive service with no lost time. It also shows he was awarded of authorized the: * Army Service Ribbon * Marksman Marksmanship Badge (M-16) c. His NGB Form 22 shows he joined the Army National Guard on 20 November 1981. He was honorably discharged on 19 November 1987. 5. The submitted congressional inquiry to the Syracuse District office congressman X__ X__ seeking assistance of his request to upgrade his uncharacterized discharge. The Army Review Board Agency responded, by letter, on 29 May 2019 and 14 August 2019, informing them that his application is being processed for consideration by the Board. 6. There is no evidence the applicant has applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board's 15-year statute of limitations. 7. By regulation, AR 635-200, 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: (1) when characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by the circumstances of the Case, (2) 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 and (3) the Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. 8. The Board should 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 warranted. Based upon a documentary review of the applicant’s military record, the Board concluded that the applicant completed a period of active duty while conducting initial entry training (IET). He was awarded a MOS at the completion of IET and was transferred back to the ARNG. Army Regulation 635-200 provides that when a RC Soldier successfully completes IADT, the character of service is Honorable unless directed otherwise by the separation authority. Based upon regulatory guidance, the Board agreed the DD Form 214 should show his character of service as Honorable. 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides 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 * the Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment c. Paragraph 4-2g, currently in effect, states members of the NG and the USAR ordered to AD for a period in excess of 90 days will, upon release from active duty revert to control of the appropriate Reserve Component. d. Paragraph 16-9, in effect at the time, states Reserve Component personnel ordered to IADT under Reserve Enlistment Program: * commanders of training installations who are separation authorities are authorized to release Reserve personnel ordered to IADT under REP 63 upon completion of MOS training. The training must be completed prior to the period of time specified in IADT orders, provided at least 12 weeks IADT has been completed * REP 63 trainees will be considered for early release from initial tours of IADT based on eligibility for leave for cogent reasons such as death or serious illness of a member of the reservist's immediate family 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. ABCMR Record of Proceedings (cont) AR20170013091 4 1