IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190006320 APPLICANT REQUESTS: The applicant requests, in effect, that his uncharacterized service be changed to 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 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, in effect, his service was uncharacterized because his U.S. Army Reserve (USAR) unit lost his military service record; someone told him the error would be corrected, but this never happened. In addition, the applicant states his First Sergeant (1SG) advised him no promotions could be granted, no presence could be recorded, and no pay could be guaranteed as a result of his service record being lost. 3. The applicant's service records show: a. On 5 March 1993, the applicant enlisted into the USAR for 8 years. That same date, the applicant's Military Entrance Processing Station (MEPS) published an order directing the applicant to report to Fort Jackson, SC, effective 1 June 1993, for initial active duty for training (IADT) to complete basic combat training (BCT). In addition, the order reflected the applicant was participating in the alternate (split) training program (i.e., the applicant was to complete advanced individual training (AIT) at a later date). The applicant's AIT military occupational specialty (MOS) was listed as 57F (Mortuary Affairs Specialist). b. A Fort Jackson Transition Center memorandum, dated 6 August 1993, indicates the applicant entered IADT on 1 June 1993, completed BCT, and was discharged on 6 August 1993; the memorandum was issued in lieu of a DD Form 220 (Active Duty Report). c. On 14 February 1994, the applicant's unit generated a memorandum in which it requested the applicant's split training be changed. While the applicant had enlisted for MOS 57F, the applicant's unit had reorganized into a water platoon, effective 1 October 1993, and MOS 57F was no longer needed. The unit requested the applicant's MOS be changed to 31C (Single Channel Radio Operator). d. Effective 5 March 1994, the applicant's chain of command promoted him to private first class (PFC/E-3). e. On 14 April 1994, the applicant's higher headquarters endorsed the unit's 14 February 1994 request and confirmed that the unit's reorganization had obviated the need for MOS 57F. Additionally, the applicant was, at that time, still a senior in high school and was not scheduled to graduate until 19 May 1994; the applicant had indicated he would be ready to ship on any date after 22 May 1994. f. On 12 May 1994, the U.S. Army Reserve Command approved the unit's request to change the applicant's MOS, provided the applicant was physically and otherwise qualified. On 13 May 1994, the applicant's MEPS issued an amended order in which an earlier instruction to report to Fort Gordon, GA for AIT in MOS 57F was deleted, and new instructions were added, showing the applicant was to report to Fort Gordon on 2 June 1994 in order to complete AIT for MOS 31C (the applicant's service record does not confirm he complied with this order). g. A DA Form 1059 (Service School Academic Evaluation Report), dated 26 July 1994, indicated the applicant had failed to achieve course standards for training in MOS 77F (Petroleum Supply Specialist); the report stated the applicant had been dropped due to non-participation. In addition, the report affirmed the applicant had not been to AIT, and he had not been informed he could not be awarded an MOS without completing AIT. h. Effective 1 September 1994, the applicant was reassigned to a Quartermaster Troop Program Unit (TPU). On 5 November 1994, a noncommissioned officer (NCO) from the applicant's TPU declared, in a DA Form 4856 (General Counseling Form), that his efforts to contact the applicant had been unsuccessful. On 21 November 1994, the applicant's 1SG noted he had reached the applicant's parents and, while they affirmed the applicant had moved, they had neither a current address nor phone number. i. On 17 October 1995, the applicant's TPU issued the applicant a letter of instruction (LOI) in which the applicant's TPU commander advised the applicant he had had missed four periods of unit training (two periods on 14 October 1995 and two periods on 15 October 1995); the commander reminded the applicant of the requirement to attend all scheduled unit trainings. The commander additionally stated, unless the aforementioned absences were excused, these most recent absences would mean the applicant had accumulated 12 unexcused absences within a 1-year period. Accruing 9 unexcused absences within a 1-year period was sufficient to declare the applicant an unsatisfactory participant and transfer him to the Individual Ready Reserve (IRR) for the balance of his military service obligation (MSO). j. On 17 December 1996, the applicant was reassigned to another TPU. On 17 January 1997, the applicant's new TPU commander issued the applicant an LOI stating the applicant had missed four periods of unit training; unless those absences were excused, the applicant would have accumulated 4 unexcused absences within a 1-year period. The applicant could be declared an unsatisfactory participant if he accrued 9 unexcused absences within 1 year and this could cause the applicant to be transferred to the IRR for the balance of his MSO. j. The applicant's service record does not include the applicant's separation packet, but his service record contains his separation order, showing, effective 10 March 1997, the applicant was discharged from the USAR with a uncharacterized service; the authority was Army Regulation (AR) 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel). k. The U.S. Army Human Resources Command (HRC) maintains a web-based personnel system called the Soldier Management System (SMS). The applicant's SMS record shows the following: * MSO expiration – 4 March 2001 * Primary MOS – 92F (formerly MOS 77F (Petroleum Supply Specialist)) * Year/Month of last Army Physical Fitness Test (APFT) – July 1994 * Major Personnel Actions – on 10 March 1997, involuntarily discharged due to unsatisfactory entry-level status performance or conduct 4. Per the version of AR 135-91 then in effect, a USAR Soldier was deemed an unsatisfactory participant when he/she had accrued nine or more unexcused absences from scheduled drills during a 1-year period, starting from the date of the first absence. At the ninth unexcused absence, the commander could declare the Soldier an unsatisfactory participant and initiate separation proceedings under chapter 13 (Unsatisfactory Participation), AR 135-178. a. AR 135-91 stated commanders were to: (1) Prepare letters of instruction to the Soldier after the Soldier's fourth unexcused absence within a 12-month period; the 12-month period started the date of the first unexcused absence, and the letters of instruction specified the dates of the Soldier's absence from scheduled training and required him/her to provide a reason for the absence. (2) The letters could be delivered to the Soldier either in person or by certified mail – restricted delivery – return receipt requested; the fact that mail was refused, unclaimed, or otherwise not delivered could not be used as a defense by the Soldier, as long as the notices were correctly addressed. The commander was to continue sending letters of instruction with each succeeding unexcused absence, up to and including the ninth absence. (3) Copies of the letters, along with any returned, unopened envelopes, were to be filed in the Soldiers local personnel file. Also filed was the unit commander's statement showing the basis for his/her decision that the ninth absence was unexcused; the statement was to incorporate the facts and/or circumstances considered by the commander. b. Chapter 13, AR 135-178, stated a Soldier was deemed an unsatisfactory participant when: (1) He/she failed to comply with the requirements of AR 135-91; and: * After the commander had sent the Soldier a second notice of absence by certified mail, and that notice was refused, unclaimed, or otherwise undelivered; or * When the command confirmed the Soldier had failed to provide proper notice of his/her change in address, and the unit had made reasonable, but unsuccessful attempts to contact the Soldier (2) When the issuance of an under other than honorable conditions character of service was not contemplated, commanders were to use the notification procedure to inform the Soldier of the pending separation action; the notification procedure stipulated that commanders were to: * Inform the Soldier, in writing, that they were unsatisfactory participants * Advise the Soldier of his/her rights * Allow 30 days for a reply; failure to respond was deemed a waiver of rights (3) The regulation mandated that Soldiers in an entry level status receive an uncharacterized description of service. A Reserve Component (RC) Soldier's entry level status began on the date of USAR enlistment; in cases where the RC Soldier was ordered to active duty under the alternative (split) training program, entry level status ended 90 days after the start of the second period of active duty for training (i.e., when the Soldier was ordered to active duty to complete AIT). 5. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request and evidence in the records. The Board considered the applicant's statement, his record of service, and the reason for his separation. The Board found insufficient evidence indicating the applicant completed AIT and was no longer in an entry-level status at the time of his discharge. As such, the Board agreed that the governing regulation required that his service be uncharacterized. Based on a preponderance of evidence, the Board determined the fact that the applicant's service was uncharacterized is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 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. When a Soldier was absent from scheduled training, the regulation stated commanders were to: a. Prepare letters of instruction to the Soldier after the Soldier's fourth unexcused absence within a 12-month period; the 12-month period started the date of the first unexcused absence, and the letters of instruction specified the dates of the Soldier's absence from scheduled training and required him/her to provide a reason for the absence. b. The letters could be delivered to the Soldier either in person or by certified mail – restricted delivery – return receipt requested; the fact that mail was refused, unclaimed, or otherwise not delivered could not be used as a defense by the Soldier, as long as the notices were correctly addressed. The commander was to continue sending letters of instruction with each succeeding unexcused absence, up to and including the ninth absence. c. Copies of the letters, along with any returned, unopened envelopes, were to be filed in the Soldiers local personnel file. Also filed was the unit commander's statement showing the basis for his/her decision that the ninth absence was unexcused; the statement was to incorporate the facts and/or circumstances considered by the commander. 3. AR 135-178, in effect at the time, prescribed policies, standards, and procedures for the administrative separation of RC Soldiers. a. Paragraph 1-18b (2) (Characterization of Service – General (Under Honorable Conditions)) stated Soldiers whose service had been honest and faithful, but for whom instances of negative conduct or performance outweighed the more positive aspects of the Soldiers' military service record, received a general discharge under honorable conditions. b. Paragraph 1-20 (Uncharacterized Description of Service). The regulation mandated that Soldiers in an entry level status receive an uncharacterized description of service. A Reserve Component (RC) Soldier's entry level status began on the date of USAR enlistment; in cases where the RC Soldier was ordered to active duty under the alternative (split) training program, entry level status ended 90 days after the start of the second period of active duty for training (e.g. when the Soldier was ordered to active duty to complete advanced individual training). c. Chapter 13 (Unsatisfactory Participation) stated Soldiers who failed to satisfactorily participate were subject to separation. (1) Commanders could deem a Soldier as an unsatisfactory participant when the Soldier failed to comply with the requirements of AR 135-91, and: * After the commander had sent the Soldier a second notice of absence by certified mail, and that notice was refused, unclaimed, or otherwise undelivered; or * When the command confirmed the Soldier had failed to provide proper notice of his/her change in address, and the unit had made reasonable, but unsuccessful attempts to contact the Soldier (2) In cases where an under other than honorable conditions character of service was not warranted, commanders were authorized to use the notification procedure. The notification procedure required commanders to advise Soldiers in writing of the specific allegations on which the separation was based, his/her rights, and that he/she could waive those rights. Soldiers were to be allowed not less than 30 days to act on the notification; if the notice was sent by mail, and the Soldier failed to acknowledge receipt, such failure constituted a waiver of rights. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006320 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006320 7 ABCMR Record of Proceedings (cont) AR20190006320 6