ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20170014061 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge From the Armed Forces of the United States) * Department of Veterans Affairs Form (VA) 10-10EZ, Application for Health Benefits 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 is requesting an upgrade for health care benefits, shelter, food and clothing. 3. The applicant provides a VA Form 10-10EZ, dated August 7 2017, applying for VA health benefits. 4. A review of the applicant’s service records shows: a. He enlisted in the United States Army Reserves (USAR) on 6 November 1978. He entered active duty for training (ADT) on 9 November 1978. He completed training for award of military occupational specialty 94B (Food Service Specialist). b. He was honorably released from ADT on 23 March 1979. His DD Form 214 shows he completed 4 months and 14 days of active service. He was transferred to his Reserve unit. c. His DA Form 2-1 (Personnel Qualification Record) shows that on 24 March 1979 he was assigned to the 758th Maintenance Company, Columbus, OH. d. The service record contains two letters of instruction of unexcused absences, that state he was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) on: * 12-13 April 1980 * 13, 14 ,and 15 June 1980 e. On 24 July 1980, the commander, notified the applicant of his intent to initiate separation action on him under the provisions of Army Regulation (AR) 135-178, (Separation of Enlisted Personnel) chapter 7, for misconduct. He cited the following reasons for the proposed actions for failure to participate in the nine (9) Army Reserves UTAs. The action was suspended for 45 days to allow the applicant an opportunity to exercise the following privileges: * to consult with counsel, to be represented at any hearing by appointed counsel for representation, military counsel of his own choice, of civilian counsel at his own expense * to appear and present his case before an administrative separation board * to submit a statement in his own behalf f. On 12 May 1981, the unit commander recommended the applicant for separation for misconduct under the provisions of section VII, chapter, AR 135-178 by reason of unsatisfactory participation. The justification for the recommendation is support by unexcused absences from unit training assemblies and annual training. g. On 29 July 1981 the commander of 5th US Army, directed a board of officer review the case with no further written notice to the applicant. h. On 28 August 1981, the applicant’s case was reviewed by a board of officer. The board’s findings: the applicant was undesirable for further retention in the unit because of misconduct-unsatisfactory participation. The board recommended the applicant be transferred to the IRR because of misconduct with a tentative characterization of service of under other than honorable conditions. i. Orders 224-103, dated 19 November 1981 relieved the applicant from 758th Maintenance Company, Columbus, OH, and assigned him to the U.S. Army Control Group, St Louis, MO, for unsatisfactory participation, with an under other than honorable conditions characterization of service. j. He was discharged by Orders D-11-909925, dated 19 November 1984, under the provisions of AR 135-178 (Separation of Enlisted Personnel) with his service characterized as under other than honorable conditions. j. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 4. By regulation, AR 135-178, chapter 7, prescribes the procedures for separation of enlisted members of the United States Army Reserves for misconduct by reason of unsatisfactory participation of statutorily obligated members. 5. In reaching its determination, the Board can consider the applicants 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 partial relief was warranted. Based upon the period of honorable service completed prior to the misconduct which resulted in the applicant’s separation, the Board concluded that the characterization of service received at the time of separation was too harsh. For that reason, the Board recommended upgrading the characterization of service to Under Honorable Conditions (General). 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 reissuing the applicant a DD Form 214 showing his characterization of service 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 upgrading the characterization of his discharge to 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 135-178, (Separation of Enlisted Personnel), chapter 7, (Misconduct), in effect at the time, established policy and provides procedures and guidance for separation of enlisted members of the Army Reserve. a. Paragraph 1-10b (1) (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) 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. c. Paragraph 7-1 (Purpose), prescribes the procedures for separation of enlisted members of the USAR for misconduct by reason of the following: * Fraudulent entry * Conviction by civil court * Other disqualifying patterns or acts of conduct * Unsatisfactory participation of statutorily obligated members. d. Paragraph 7-3. (Type of separation), enlisted members separated for reasons indicated in paragraph 7-1 will normally be furnished a characterization of service of under other than honorable conditions. If warranted by the circumstances of the case, a characterization of service of honorable or under honorable conditions may be furnished. 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) AR20170014061 4 1