ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 January 2020 DOCKET NUMBER: AR20170014758 APPLICANT REQUESTS: An upgrade of his discharge from the United States Army Reserve (USAR), from an under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge (GD) or an uncharacterized (UNC) character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * USAREC Form 512-R-E (Regular Army and Reserve Components Referral Sheet), dated 19 July 1999 * Maricopa County (Arizona) Sheriff's Office Certificate of Graduation, dated 25 October 2007 * Orders 02-200-00028, issued by Headquarters, 63d Regional Support Command, Los Alamitos, CA on 19 July 2002 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, in effect, that after his discharge from basic training in December 1999, he returned home and found his family in extreme financial distress. a. He had no transportation available to attend his drills, which were several hours away, each way, in California traffic. He contacted his assigned unit and notified them of his hardship and requested to complete his drills at a closer location to his home. He was told he could remain inactive and would be contacted at a later date. He called several months later to check on his status and was told the same thing. He never received a follow up and was never contacted again by his unit. He was never told to report anywhere, never informed he would be discharged, nor was he informed when he was discharged in 2002. As far as he was concerned he was inactive and excused. b. He was only made aware of his discharge status in 2014 after requesting a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and also receiving a "screen print-out" of his discharge order, which showed he had received an UOTHC. All his previous requests only included the DD Form 214 and therefore, believed his discharge was a UNC. c. He desires a GD or an entry-level discharge since he served less than 6 months. He previously served as a law enforcement officer for several years before moving on to work with the postal service. He now plans to reenter the law enforcement field and feels his discharge may be a detriment to securing a job. 3. The applicant enlisted in the USAR with the 376th Personnel Service Battalion, Long Beach, CA, a troop program unit (TPU) on 6 May 1999. His records show that he lived in San Bernardino, CA, approximately 74 miles away from the unit. 4. He was ordered to active duty on 20 July 1999 and completed his basic and military occupational specialty (MOS) training at Fort Jackson on 18 December 1999, a period of 4 months and 29 days. He was awarded the MOS 75B (Personnel Administrative Specialist) and an Army Service Ribbon. Upon his release from active duty, he was transferred back to the 376th Personnel Service Battalion. 5. According to his retirement points statement, he attended drill at the 376th on 4-5 February 2000 where he completed and signed a SGLI election form. On 6 February 2000, he was advanced to the rank of PFC by his unit commander, with an effective date of 20 February 2000. There are no further entries on his retirement points statement. 6. On 19 July 2002, the 63rd Regional Support Command issued order 02-200-00026 reducing the applicant from PV2 to PV1. The applicant’s records have no records of his reduction from PFC. The orders also discharged the applicant from the USAR by authority of AR 135-178, paragraph 1-18b(3). It is noted that this paragraph is not an authority for discharge but rather it refers to characterization of service in an obsolete 1983 edition of AR 135-178 which was superseded by 29 December 2000 edition of AR 135-178 in which there is no paragraph 1-18b(3). 7. Based on the statements of the applicant, it may be assumed that the intent of the discharge was for Unsatisfactory Participation, Chapter 13, AR 135-178, which is the proper authority for such a separation. It is also noted that the orders were issued on 19 July 2002, 2 ½ years after his attendance at drill on 4-5 February 2000. 8. If the applicant was separated for unsatisfactory participation for unexcused absences, AR 135-91 specifies the procedures that must be taken. The unit commander must notify the absent Soldier by mail after the 4th unexcused absence of the fact that the 4 drill absences are unexcused and that after the 9th unexcused absence, the Soldier is liable discharge for Unsatisfactory Participation. The Soldier must likewise be notified after the 5th through 9th absence. The commander is required to place in the Soldier’s personnel file evidence that these unexcused absences were mailed and a statement by the commander of the determination that the absence is excused or unexcused with rational for the decision. The applicant’s personnel records are void of any of these required documents. 9. After the 9th unexcused absence which is typically two months from the first unexcused absence (missing a weekend drill would be 4 unexcused absences), the commander is to initiate separation action for unsatisfactory participation. This should have occurred in May 2000. However, it is noticed that the applicant’s discharge orders presumably for unsatisfactory participation were not issued until more than 2 years later. It is also noted that the applicant’s discharge orders are not filed in his personnel record. 10. AR 135-178, Chapter 13 (Unsatisfactory Participation) authorizes characterization of service for this discharge as under other than honorable conditions or general under honorable conditions. Uncharacterized character of service can only be used if the Soldier is in an entry level status which is the first 180 days of service. 11. The applicant provides the following: a. A USAREC Form 512, dated 19 July 1999 that shows the applicant referred a friend to the Regular Army of Reserve components. b. Orders 02-200-00028, issued by Headquarters, 63d Regional Support Command, Los Alamitos, CA on 19 July 2002 shows the applicant was discharged from the USAR effective 19 July 2002 under the authority AR 135-178, paragraph 1-18b(3) and was given an UOTHC discharge; and he was reduced from PV2 to PV1. c. A certificate of graduation, dated 25 October 2007 that shows he successfully completed the Maricopa County (Arizona) Sheriff's Office Academy class. 12. A review of the applicant's official military personnel file (OMPF) does not contain any the required documentation for unexcused absence in accordance with AR 135- 91documentation or separation packet regarding his release from his military service in the USAR, other than what has been provided by the applicant. 13. Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), dated 3 December 2001, states "Unsatisfactory Participation in the Ready Reserve" the Soldier's characterization of service normally will be UOTHC. BOARD DISCUSSION: The Board found sufficient evidence of error and injustice in the records of the applicant’s discharge from the USAR in 2002 to warrant relief. Accordingly, the Orders 02-200-00028, Headquarters, 63d Regional Support Command, Los Alamitos, CA, dated 19 July 2002, should be voided and new orders issued for discharge from the USAR on 19 July 2002 under Secretarial Authority with a characterization of Honorable in the rank of PFC/E3. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 voiding/rescinding the Orders 02-200-00028, Headquarters, 63d Regional Support Command, Los Alamitos, CA, dated 19 July 2002; issuing new orders for discharge from the USAR on 19 July 2002, by authority of “Secretarial Authority,” with a characterization of Honorable, in the rank of PFC/E3. The Board also recommends executing the administrative corrections to the applicant’s DD Form 214 for the period ending 18 December 1999 identified in the Administrative Note(s) below. 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. ADMINISTRATIVE NOTE(S): 1. The applicant's record contains a DD Form 214, for the period ending 18 December 1999 that shows he was awarded a MOS and was released from active duty for training by reason of completion of required active service. This form shows he received an "Uncharacterized" character of service. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states Soldiers with less than 181 days of continuous active service who have completed IET, been awarded an MOS, and been assigned to a follow-on unit for duty will be processed for discharge with an honorable characterization of service. Therefore, it would be appropriate to delete the entry "Uncharacterized" from item 24 (Character of Service) of the applicant's DD Form 214 and replace it with the entry "Honorable." 2. Void the applicant's DD Form 214 and issue him a new DD Form 214 showing he received an honorable characterization of service. 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 (Army National Guard and Army Reserve – Enlisted Administrative Separations), dated 3 December 2001, sets forth the basic authority for the separation of enlisted ARNG and USAR personnel. a. Paragraph 2-9a provides that an honorable characterization of service 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 provides that a general (under honorable conditions) characterization of service 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 provides that service may be characterized as under other than honorable conditions when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. d. Paragraph 2-11a provides service will be describes as uncharacterized if separation processing is initiated while a Soldier is in an entry level status as defined as: A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry level status upon enlistment in a Reserve component. Entry level status for such a member of a Reserve component terminates as follows: (1) 180 days after beginning training if the soldier is ordered to ADT for one continuous period of 180 days or more; or (2) 90 days after the beginning of the second period of ADT if the soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty. e. Chapter 13 (Unsatisfactory Participation in the Ready Reserve). (1) Characterization of service normally will be Under Other Than Honorable Conditions, but characterization as General (under honorable conditions) may be warranted under the guidelines in chapter 2, section III (paragraph 2-9b). (2) For soldiers who have completed entry level status, characterization of service as Honorable is not authorized unless the soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. In such cases, separation for unsatisfactory participation with an Honorable characterization will be approved by the separation authority. As an exception, the separation authority will approve separation with service characterized as Honorable when an administrative separation board has recommended such characterization. (3) When characterization of service as Under Other Than Honorable Conditions is not warranted for a soldier in entry level status under chapter 2, section III, the service will be described as uncharacterized. 3. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), dated 26 September 2000, in effect at the time, provides that a Soldier is an unsatisfactory participant when he or she attains 9 or more unexcused absences from scheduled inactive duty training during a 1-year period. Unless an absence is authorized, a Soldier failing to attend a scheduled drill will be charged with an unexcused absence. When absence involves a Multiple Unit Training Assembly (MUTA), or any portion of a MUTA, the charge will be one unexcused absence for each 4-hour period not attended, but not to exceed four unexcused absences. Unexcused absences remain charged to the Soldier on reassignment or reenlistment in another Reserve Component unit. Starting on the 4th unexcused absence, the unit commander is required by this regulation to document attempts to notify the Soldier of the unexcused absence and put them in the Soldiers personnel file. Commanders will also secure and document the assistance of the nearest provost marshal and/or directorate of emergency services) and civilian local and State law enforcement to determine the whereabouts and welfare of Soldiers when the second unexcused absence from a unit training assembly occurs. When certified mail is used to send the notices to the Soldier of unexcused absence, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered will be placed in the Soldier’s personnel file. Mail refused, unclaimed, or otherwise not delivered may not be used as defense against unexcused absences when notices were correctly addressed. 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 will be placed in the Soldier’s personnel file. Also, for each such notice, the individual mailing the notice will prepare an “affidavit of service by mail” in accordance with the format prescribed in the regulation. 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. The commander will place in the Soldier’s personnel file a statement showing his or her decision as to whether the reason which prevented the Soldier from attending the training assembly which resulted in a determination of unsatisfactory participation was valid or an emergency. The facts or circumstances on which the decision is based will be included in the statement. After the 9th unexcused absence, the commander is to initiate discharge under AR 135-178, Chapter 13, for Unsatisfactory Participation. // NOTHING FOLLOWS // ABCMR Record of Proceedings (cont) AR20170014758 5 1