ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180012659 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 after serving in the Army Reserves at 18 and serving at a base in Caven Point, NJ and then being transferred to 322nd General Hospital, Kearny, NJ, he found out months later that he had to go to Fort Dix for Reserve duty, but it wasn't confirmed. He had just started working, and never received forwarding orders until years later when he was trying to find his military records. He never had a hearing or anything, it was just over. He considered it again, and at 57 years old he decided to go back to school and needed verification of my military studies. If he was stationed at Fort Dix it would have been one thing, but going there once a month was impossible. He just couldn't move around like a lot of people did back in the day. 3. A review of the applicant’s service record shows: a. He enlisted in the Army Reserves on 8 December 1978. He entered active duty for training (ADT) on 26 January 1979 and was honorably discharged on 6 May 1979. b. His DA Form 2-1 (Personnel Qualification Record) shows that on 7 May 1979 he was assigned to the 322nd General Hospital, Kearny, NJ, and on 6 August 1979 he was further assigned to the 322nd General Hospital, Picatinny, Dover, NJ. c. The 1AA Form 840-R (Letter of Instruction of Unexcused Absences) state he was absent from the scheduled training assembly (UTA) or multiple unit training assembly (MUTA) on: * 26 August 1979 * 21-23 September 1979 * 23, 24 February 1980 * 22, 23 March 1980 * 18, 19, 20 April 1980 * 17, 18 May 1980 * 28, 29 June 1980 d. The 1AA Form 841-R (Notice of Unsatisfactory Participation and Right to Appeal (Involuntary Active Duty) (Active Duty Training) dated: * 5 November 1979, shows 6 unexcused absences with in a one year period, he did not submit a request to be excused from the periods(s) of MUTU for 5, 21, 22, and 23 September 1979 * 7 November 1980, shows that he was charged with 24 unexcused absences within a one year period, or being absent without leave (AWOL) from annual training e. On 11 April 1980, the 322nd General Hospital, Pictanny Arsenal, Dover, NJ, by letter, notified the applicant of his discontinuance of involuntary active duty/active duty for training (AD)/(ADT) for failure to participate. He was notified that the 1AA Form 841R forwarded to him dated 5 November 1979 is rescinded. He was directed to report to the headquarters on 22 and 23 March 1980 for the purpose of resuming his regularly scheduled training assemblies. It states that all previous unexcused absences would remain unchanged. A copy of the drill schedule for training year 1980. f. On 23 July 1980, he was ordered to annual training for a period of 14 days starting 17 August 1980 at 361 Hospital, Fort Drum, NY. His DD Form 2-1 does not show that he reported for duty. g. The affidavit of Service by mail, sworn by the State of New Jersey on 18 August 1980, to the U.S. Postal Service stated that the detachment commander of 322nd General Hospital, Pica tinny Arsenal, Dover, NJ on 7 July 1980 mailed the notification, dated 7 July 1980, subject: Separation Under AR 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel) to the applicant at his last known address. A true copy of which was attached, via certified mail, restricted delivery, and a return receipt requested. h. The U.S. Post Office, by letter, on 26 August 1980 responded to the affidavit of Service by mail sent to the applicant and stated that the structure at the last known address was destroyed by fire over a year prior to this date. There was no forwarding address for the applicant on file. In compliance with postal regulations, changes of address are maintained for a period of one year. i. On 7 November 1980, the commander, notified the applicant of his intent to initiate separation action on him under the provisions of AR 135-178, chapter 6 for unsuitability. He cited the following reasons for the proposed actions: failure to participate in the Army Reserves, failure to acknowledge receipt of registered mail. 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 j. The signed certified receipt or the statement by the applicant indicating that he had been advised of his rights, was never returned. k. The DA Form 2496 (Deposition Form), shows that the unit commander in accordance with AR 135-178, attempted to contact the applicant for drills missed from 17 September 1979 to 7 July 1980. After nine absences, they continued to forward correspondence. On 26 Aug 80 they received notification from the post office that this residence had been destroyed. Since that time they have been unable to contact the applicant. l. On 28 January 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. m. On 3 February 1981, the command recommended he be transferred to the Individual Ready Reserves (IRR) because of unsatisfactory participation and directed his service be characterized as less than honorable. n. Orders 56-43, dated 20 March 1981 relieved the applicant from 322nd General Hospital, Picatinny Arsenal, NJ and assigned him to the U.S. Army Control Group, St Louis, MO, for unsatisfactory participation, under other than honorable conditions. o. He was discharged by Orders D-12-914245, dated 19 December 1985, under the provisions of AR 135-178, his characterization is under other than honorable conditions. 4. By regulation, AR 135-178, paragraph 6-5, states that a member separated under this chapter will be characterized as honorable or under honorable condition as warranted by his or her military records unless separated while in entry level status. 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 relief was not warranted. Based upon the short term of service completed prior to multiple events of missing drill responsibilities, as well as a lack of corroborating evidence to support the statement of the applicant, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 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. AR 135-178, chapter 6, unsatisfactory performance in effect at the time, established policy and provides procedures and guidance for separation of enlisted members of Army Nation Guards and Army Reserve for unsatisfactory performance. a. Paragraph 1-22b, states the following criteria apply to members who have completed basic training or 8 weeks of one-station-unit-training (OSUT) and who are to be separated under one of the reasons cited in (1) or (2) below. If the service of such member will be characterized as honorable they will be transferred to the IRR. If the service of such member will or will not be characterized as under honorable conditions, they will be transferred to the IRR unless they clearly have no potential for useful service under conditions of full mobilization. Before making a no potential determination, the separation authority must give due consideration to all pertinent factors, including the positive motivation that a full mobilization may have on the member and the probable maturing effect of an additional 2 or more years in age. The fact that the member is being separated for one of these reasons is not sufficient basis for a no potential determination. (1) entry level performance and conduct, chapter 5 and (2) unsatisfactory performance, chapter 6. b. Paragraph 6-5, states that when a member separated under this chapter will be characterized as honorable or under honorable condition as warranted by his or her military records unless separated while 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. ABCMR Record of Proceedings (cont) AR20180012659 4 1