ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2019 DOCKET NUMBER: AR20170015659 APPLICANT REQUESTS: upgrade of his discharge from the U.S. Army Reserve (USAR) from general to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * State robbery charges sheet 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 falsely arrested in June 2010 and charged with two counts of robbery. He fought for his freedom to prove his innocence for almost two years. He was finally released from custody and all charges were dropped, because someone was arrested and convicted of the robbery, the same one that he was accused of. He was discharged from the USAR during this time. His entire life had changed. He lost everything he had: he was evicted from his apartment, lost his relationship with his son, and it had been very difficult to get a job. He has no proof or record to show his service to this country. He was promised educational benefits that he is now not eligible to receive because of the current status on his DD Form 214 (Certificate of Release or Discharge from Active Duty). He did not get in trouble while in the Army. He never received an Article 15. He feels that he has been punished for something he had no control over. He was falsely arrested for a crime he did not commit. He provides a printout of from the State of Alabama related to robbery charges. 3. Review of the applicant’s service records shows: a. He enlisted in the U.S. Army Reserve (USAR) on 25 February 2008. b. He entered active duty for training (ADT) on 2 April 2008 and completed training for award of military occupational specialty (MOS) 92A (Automated Logistical Specialist). c. He was released from ADT on 10 April 2008 for completion of required active service. His DD Form 214 shows he completed 6 months and 9 days of active service. d. He was assigned to the 326th Chemical Company, a troop program unit of the USAR. e. He completed the Chemical, Biological, Radiological, and Nuclear (CBRN) Specialist Course, Phase II from 29 June to 12 July 2009, Phase III from 12 to 19 July 2009, and Phase IV, 19 July to 2 August 2009. f. On 22 October 2009, Headquarters 335th Signal Command (Theater), published orders awarding him primary MOS 74D (Chemical Specialist). g. He completed the Biological Integration Detection System Course from 1 March to 17 March 2010. h. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his service record contains Orders 12- 067-02, issued by Headquarters, 81st Regional Support Command, Fort Jackson, SC on 7 March 2002 ordering his discharge from the USAR: * the authority is Army Regulation (AR) 135-178 Army National Guard and Army Reserve Enlisted Administrative Separations) * Effective Date 12 March 2012 * Character of Service: Under Honorable Conditions (General) h. On 23 August 2016, the Army Discharge Review Board reviewed his discharge but found it proper and equitable. The ADRB denied his request for an upgrade of his general discharge to honorable. 5. By regulation (AR 135-178), specific categories for separation include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. The characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty. The reasons for separation, including the specific circumstances form the basis for the discharge are considered on the issue of characterization. Possible characterizations of service include an honorable, general, under honorable conditions, and under other than honorable conditions (uncharacterized if the Soldier is in entry-level status). 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, the Board found relief was not warranted. The Board did consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. Based upon the unavailable documents, the Board could not review the reason for his discharge. The Board noted the applicant’s statement, but there was no evidence to corroborate the statements of the applicant. The Board wished to inform the applicant that if the applicant can provide his complete separation packet, he may reapply to this Board for reconsideration. However, based upon the limited documentary evidence available, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s military service record. 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. 11/12/2019 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 sets forth the 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 and U.S. Army Reserve enlisted Soldiers for a variety of reasons. Separation policies in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. Characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances form the basis for the discharge are considered on the issue of characterization. Possible characterizations of service include an honorable, general, under honorable conditions, under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. 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