ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20170016217 APPLICANT REQUESTS: an upgrade to his character of service APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge From Active Duty) * Legal Review of Separation Proceedings * Rank Reduction and United States Army Reserves (USAR) Discharge Orders * College Transcripts * Directions and Distance to Reserve Drill * Bank Statements FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170013534 on 30 September 2016. 2. The applicant states he wishes to change his under other than honorable conditions discharge to honorable or general under honorable conditions. He was attending school during this time period and it was a financial hardship to drive the distance to drill. 3. The applicant provides: a. College transcripts, as proof showing he was in school during this period. b. DD Forms 214 showing he was honorably discharged from active duty along with his discharge from the USAR issuing an under other than honorable conditions discharge. c. Directions to his Reserve unit to show the distance it took to drive. d. Copies of his bank statements for a two year period to show his financial situation at the time. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 10 January 2008 and reenlisted on 8 April 2009 for 3 years in the pay grade of Private first class/E-1. b. His record is void of an Enlisted Records Brief that would list his military assignments, military schools, awards received and time frames of any training completed; however, his DD Form 214 does show he served overseas in Korea from 25 July 2008 until 19 September 2010. c. On 29 November 2011, he received his reassignment orders assigning him to his reserve unit. His terminal Reserve obligation was to end on 29 October 2015. d. He was discharged from Active Duty at the completion of his required active service on 7 April 2012 and was issued an honorable conditions discharge. He completed 4 years, 2 months and 28 days of net active service this period with no lost time. e. His record is void the circumstances leading up to his separation from the USAR and the actual separation packet; however, it does contain a Legal Review of Separation Proceedings of the applicant, dated 15 May 2013, signed by the Command Judge Advocate. It states that the reason for the proposed separation was that the applicant had at least 9 unexcused absences over a 12 month period. f. According to this memorandum, the applicant was notified that he was being recommended for an under other than honorable conditions discharge under the provisions of Army Regulation (AR) 135-178, (Army National Guard and Army Reserve – Enlisted Administrative Separations), Chapter 13, unsatisfactory participation in the ready reserve. g. Because of his prior active duty service of 4 years and service overseas in Korea, his command recommended that he be separated with a general, under honorable conditions discharge, instead of the under other than honorable conditions discharge that usually accompanies the Chapter 13. h. On 24 June 2013, he was discharged from the USAR and issued an under other than honorable conditions discharge under the provisions of AR 135-178. He was also reduced to the grade of Private/E-1. 5. By regulation as an exception, the separation authority will approve separation with service characterized as honorable when an administrative separation board has recommended such characterization. 6. 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 review of the application and all evidence, the Board determined relief is not 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the continuous failure to participate, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), in effect at the time, establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the United States Army Reserve as directed by Department of Defense Directive 1332.14, December 1993, Subject: Enlisted Separations. a. Paragraph 13-1, Unsatisfactory Participation in the Ready Reserve, states that a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed by AR 135-91, chapter 4 attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier’s refusal to comply with orders or correspondence, a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of paragraph 2-18 and chapter 3, section IV b. Paragraph 13-3a, Characterization of service, states that 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. c. Paragraph 13-3b, says that for Soldiers who have completed entry level status, characterization of service as honorable is not authorized unless the Soldiers 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 (paragraph 1-10). As an exception, the separation authority will approve separation with service characterized as honorable when an administrative separation board has recommended such characterization. 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// ABCMR Record of Proceedings (cont) AR20170016217 3 1