ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    26 April 2019

	DOCKET NUMBER:  AR20170016720


APPLICANT REQUESTS:  His U.S. Army Reserve (USAR) discharge be upgraded from an under other than honorable conditions (UOTHC) discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* a statement from his recruiter

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 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:

   a.  He was discharged due to his failure to attend drills.  At the time, he was assigned to a unit in Paris, TX.  At some point he was no longer able to attend but was unaware he needed to report to his unit.  He takes full responsibility for that, he should have kept up with everything.  

   b.  He is requesting this change so that he can reenlist.  He retook the ASVAB but needs to have his discharge code changed to be able to rejoin.  He wants to serve his country to the best of his ability.  He wants to support his family while being part of a larger family.  He is still adjusting to civilian life and it is difficult for him.  He loves the rank structure, the authority, and the life style of the Military.  He wishes to be part of this family again, and he wants to be the best that he can be.

3.  The applicant enlisted in the USAR on 20 March 2008.

4.  The applicant received an involuntary reassignment for the convenience of the government on 14 September 2008, to a unit in Oklahoma City, OK. 

5.  The available record does not contain any documentation related to the applicant's USAR service or his separation processing, with the exception of his separation orders.  

6.  The applicant was discharged from the USAR on 7 June 2011, under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations).  His discharge orders do not cite a specific paragraph under which he was discharged.

7.  The Army Discharge Review Board denied the applicant's request for an upgrade on 6 November 2013.

8.  An Army recruiter letter, dated 13 October 2017, states the applicant's current character of service prevents his reenlistment but for this factor he would otherwise be qualified for enlistment.

9.  Under usual circumstances the Board should apply the presumption of regularity; however, because of the total lack of records to determine the specific reason and proper separation processing combined with his desire to reenlist and the recruiter's opinion of his eligibility, the Board may consider relief 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 not warranted.  One potential outcome discussed was to grant the request for relief based upon applicant accepting responsibility for his actions.  However, the Board concluded that based upon the totality of the circumstances, the Board found insufficient justification to make a change in the characterization of service.  The Board concluded that the characterization of service received at the time of discharge was appropriate.  




BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	X:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

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.  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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 135-178 sets forth the basic authority for the separation of Reserve Component enlisted personnel.

   a.  An honorable characterization 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.  If a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) 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.  Service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons.  
   
   d.  A discharge where service is characterized as under other than honorable conditions will be directed only by a general officer in command who has a judge advocate or legal advisor available to the command, or a higher authority.
   
   e.  No Soldier will be discharged in accordance with this regulation, with service characterized as under other than honorable conditions, unless he or she is afforded the right to present his or her case before an administrative separation board.  The Soldier will be afforded the advice and assistance of counsel.  Such discharge must be supported by approved board findings, and an approved board recommendation for discharge under other than honorable conditions.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  

	a.  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 on the basis of equity, injustice, or clemency grounds, Boards 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.  

	b.  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)	 AR20170016720
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