ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20190002995 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form 180 (Request Pertaining to Military Records) * May 2018 calendar FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 served his full 6-year term as an active U.S. Army Reserve (USAR) Soldier; he attended all possible weekend and 2-week drills. Any drills he missed were made up during available training periods. He believes he served to the best of his ability and should have been awarded an honorable character of service. The Department of Veterans Affairs (VA) recently denied his certificate of eligibility for a VA home loan. In addition to erring when they issued him a general discharge, the applicant's chain of command only gave him one promotion the whole time he served; he did not complain, he just did his job. 3. The applicant's service records show: a. On 30 November 1976, as part of the applicant's enlistment into the USAR, he signed a DA Form 3540 (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting or Reenlisting in the USAR). On this form, he acknowledged the requirement to satisfactorily participate in the Ready Reserve by attending at least 48 scheduled unit trainings per year; accruing 5 or more unexcused absences during any continuous 365-day period could result in being declared an unsatisfactory participant. He enlisted into the USAR on 1 December 1976 for a 6-year term. b. On 21 January 1977, orders called the applicant to initial active duty for training; on 27 April 1977, after completing initial training, he was honorably discharged. c. Between 22 July and 2 August 1981, the applicant's unit commander twice advised him in writing that the applicant had accrued unexcused absences (12 in July and the number increased to 16 in August). The commander reminded the applicant, under the provisions of Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), he was required to attend all scheduled unit training assemblies and periods of annual training; accumulating nine unexcused absences within a 1-year period could result in being declared an unsatisfactory participant. In each case, the applicant's service record showed a signed return receipt. d. On 6 December 1981, the applicant's unit commander sent him another letter stating the applicant had, to date, accrued 2 unexcused absences. The applicant's service record shows a signed return receipt. After this letter, the commander sent the applicant three more notices, with the final letter showing the applicant had accumulated 10 unexcused absences. Each letter had an associated signed return receipt. e. On 27 June 1982, the applicant's unit commander advised him in writing he was charged with 10 unexcused absences within a 1-year period; as a result, his commander was declaring him an unsatisfactory participant and would initiate action to separate the applicant under section VII (Unsatisfactory Participation of Statutorily Obligated Members), chapter 7 (Misconduct), AR 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel). The commander enumerated the applicant's rights under the regulation, and indicated the applicant had 45 days to respond and to consult with counsel. Final decision as to separation and character of service would be made by the separation authority. The applicant's service record showed a signed return receipt, dated 29 June 1982. f. On 30 November 1982 (at the expiration of the applicant's 6-year term), the applicant was separated from the USAR with a general discharge under honorable conditions. The authority was paragraph 3-1 (Completion of Terms of Enlistment or Period of Statutory Obligated Service), AR 135-178. 4. The applicant asserts his under honorable conditions character of service is in error because he completed his 6-year service obligation and attended all possible drills; any he may have missed were subsequently made up during available training periods. The applicant's service record reflects the applicant's chain of command was considering separation due to unsatisfactory participation after he had accumulated 10 unexcused absences; he was discharged under honorable conditions at the expiration of his term of service. In reaching its determination, the Board should also consider the statements and evidence the applicant provided in conjunction with his military service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, his statement, evidence in the record and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the evidence in the record pertaining to unexcused absences, the lack of a separation packet or evidence of due process and orders that show he completed 6 years of service. The Board determined that based on the above clemency can be applied and his discharge characterization should be corrected. 2. After reviewing the application and all supporting documents, the Board found the relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for full relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his discharge orders number 230-278, dated 30 November 1982, to reflect Type of discharge as 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): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 135-91, in effect at the time, governed service obligations for USAR members. It stated a member was an unsatisfactory participant when he/she accrued nine or more unexcused absences from scheduled drills during a 1-year period. 3. AR 135-178, in effect at the time, prescribed policies, standards, and procedures for the administrative separation of Reserve Component Soldiers. a. Paragraph 1-28 (Character of Service) stated separating USAR Soldiers would have their service characterized based on their behavior and duty performance. b. Paragraph 3-1 stated, upon expiration of a term of enlistment or period of statutorily obligated service, an enlisted Soldier would be discharged. c. Chapter 7 governed separations for misconduct; section VII addressed disposition of unsatisfactory participants. This section stated all Soldiers who failed to satisfactorily participate would be separated and transferred to the Individual Ready Reserve. Soldiers were to be informed, in writing, that they were unsatisfactory participants, advised of their rights and proposed character of service, and allowed 45 days to reply. Following this, commanders were to forward their recommendation to the separation authority for action. 4. 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 on the basis of 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) AR20190002995 4 1