BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20180016075 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 19 November 2018 * DD Forms 214 (Certificate of Release or Discharge from Active Duty), for the periods ending 26 February 1998 and 10 April 2007 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 he wants to have a better chance for a job opportunity and receive his full benefits through the Department of Veterans Affairs (VA). He has twelve children and one grandchild, this could help his family and advance his life. 3. The applicant served in the Pennsylvania Army National Guard (PAARNG) from 11 June 1997 through 28 August 2001. 4. The applicant enlisted in the Regular Army on 29 August 2001. He reenlisted in the Regular Army on 17 July 2004 and again on 15 September 2006. 5. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was discharged on 10 April 2007, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct (serious offense). a. Item 12a (Date Entered Active Duty This Period) of his DD Form 214 shows an erroneous entry on active duty date of 9 May 2001. Record documents (e.g. his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) and ARNG discharge orders) show he was discharged from the ARNG effective 28 August 2001. b. Item 12c (Net Active Service This Period) of his DD Form 214 shows he was credited with completing four years, 11 months, and two days of net active service. c. Item 24 (Character of Service) of his DD Form 214 shows his service was characterized as under honorable conditions (general). 6. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 18 April 2018. 7. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the absence of a separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the correction stated in the Administrative Notes below. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as indicated in the Administrative Note(s) that follow. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade to Honorable. 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): A review of the applicant's record shows his DD Form 214, for the period ending 10 April 2007, contains incorrect data and/or is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by: a. deleting the current entry in item 12a, replacing it with the entry "2001 08 29"; b. deleting the current entry in item 12c, replacing it with the entry "0005 07 12"; c. deleting the following entries in item 18 (Remarks): * Continuous Honorable Active Service: 20010509 – 20070319 * Immediate Reenlistments This Period: 20040717 – 20080914 * Block 6, Period of Delayed Entry Program: 20010829 – 20020508; and d. adding the following entries in item 18: * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * IMMEDIATE REENLISMENTS THIS PERIOD: 20010829 – 20040716; 20040717 – 20060914 * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20010829 UNTIL 20060914 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 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. a. Paragraph 1-4b(5) of the regulation in effect at the time stated that a DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Paragraph 2-4h(18) of the regulation currently in effect states that item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service. Subparagraph (c) states that for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. c. Since 1 October 1979, military personnel discharged for the purpose of immediate reenlistment are no longer issued a separate DD Form 214. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016075 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016075 6 ABCMR Record of Proceedings (cont) AR20180016075 3