ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  17 September 2019

	DOCKET NUMBER:  AR20190006361


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable condition (general) discharge or an 
honorable discharge.  Through counsel, he requests a personal appearance before the 
Board.

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), dated 16 April 2019, with self-authored 
statements and time line
*	counsel's letter, dated 16 April 2019, with attached Orders 10-214-00022, issued 
by Headquarters, 88th Regional Support Command on 2 August 2010
*	statement, U.S. Army Reserve (USAR) Judge Advocate, dated 16 April 2019
*	statement, 300th Military Intelligence (MI) Brigade Judge Advocate, dated  
17 April 2019

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code, 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 joined the 405th Civil Affairs Battalion in 2009.  After realizing his skills would 
be better suited to the Ml Brigade in which he previously served, he decided it would be 
best to request a transfer.  He talked to a recruiter about transferring; instead, the 
recruiter suggested he get a 6-month release and go to Officer Candidate School 
(OCS).  The release was granted but after further thought, he decided he did not want 
to go to OCS as he had previously served as an officer.  He decided he would be fine 
serving as an enlisted man.  He talked with the Army National Guard (ARNG) and 
USAR recruiters about his change of plan.  He was told he did not have to go to OCS as 
long as he rejoined the military.  He joined a unit of the Utah ARNG (UTARNG), 
specifically, Delta Company, 142nd Battalion, 300th Ml Brigade.  He served in that unit 
previously and felt he would be a much better fit there.

   b.  As he began the process to rejoin the ARNG, he was told he could not get in.  He 
is not sure what the regulations were that kept him from getting back into the ARNG.  At 
that point he was not sure what to do.  He started getting letters from the 405th Civil 
Affairs Battalion before his release was up.  Apparently, his release was cancelled 
prematurely without his knowledge.  Around the end of 2009, he talked to the 405th Civil 
Affairs Battalion and was told that the JAG was in charge of his case and he would have 
to talk with them.  After talking to various people at the JAG and at the USAR Command 
(USARC), he received his UOTHC discharge about 8 to 9 months later.

	c.  During this same time, coinciding with the economic collapse of 2008, he lost his 
job and he was in the process of losing his house and all of his financial assets.  He had 
to declare bankruptcy and ended up homeless.  As a result, he was not thinking clearly.  
He was overwhelmed with his personal issues and did not handle his military 
responsibilities in the best way.  It was beyond what he could handle at the time.  He 
regrets his poor handling of the whole situation.  In hindsight, it was not a good time for 
him to try to rejoin the military.

   d.  He accepts responsibility for not handling his problems in a professional way.  
However, he has learned from his mistakes and has improved his life dramatically.  He 
is ready to rejoin the military and to serve honorably.  He has been working two jobs for 
the last six years and three months.  He was with Crus Oil for three years and eight 
months and left on good terms to use his master's degree and become a teacher.  He is 
now in his third year as a teacher in the Jordan School District.  He built and sold a 
single family home in Herriman, Utah.  He took back control and rebuilt his finances, 
improving his credit score and increasing his credit limit.  He was approved for the 
purchase of a new car and paid it off early.  He has been married for five years and has 
two grandchildren.  He is serving in his church and community and he has letters of 
recommendation and character references.

3.  The applicant enlisted in the California ARNG (CAARNG) on 31 March 1995.  He 
was ordered to initial active duty for training (IADT) on 26 September 1995.  He 
successfully completed his IADT and was released from active duty on 22 April 1996.  
He was returned to the control of the CAARNG to complete his service obligation. 

4.  The applicant was honorably discharged from the ARNG on 26 April 2001, to accept 
an appointment as a commissioned officer in the U.S. Army Reserve.

5.  The applicant was appointed as a Reserve commissioned officer of the Army on 
27 April 2001, in the rank/grade of second lieutenant/O-1.  He was appointed in the 
UTARNG effective 29 April 2001.

6.  Orders 015-002, issued by Headquarters, UTARNG on 15 January 2002, separated 
the applicant from the UTARNG effective 15 December 2001 and transferred him to the 
USAR Control Group (Reinforcement).  His National Guard Bureau (NGB) Form 22 
(Report of Separation and Record of Service), covering the period 29 April through  
15 December 2001, indicates his separation resulted from his resignation and his 
service was characterized as honorable.

7.  Orders C-05-313227, issued by the U.S. Army Reserve Personnel Command  
(AR-PERSCOM), St. Louis, MO on 15 May 2003, released the applicant from the USAR 
Control Group (Reinforcement), effective 15 May 2003, and reassigned him to a USAR 
unit subordinate to the 91st Training Division and the 63rd Regional Support Command. 

8.  The applicant was subsequently released from the USAR and was appointed in the 
UTARNG on 3 June 2003, in the rank/grade of second lieutenant/O-1.

9.  In an undated statement, the applicant requested to be discharged from the ARNG.  
He stated he would be unable to attend his officer basic course (OBC) as he would be 
attending a master's program that would be running year round and he would be over 
the 3-year window soon.  He stated he appreciated his time in the ARNG but it would be 
in the best interest to be removed from the ARNG so he could pursue other avenues of 
education and employment.  He also believed it would be in the best interest of the 
ARNG monetarily to release him because he would be moving out of the state in May 
2005, upon completion of his master's degree.

10.  Orders 314-005, issued by Headquarters, UTARNG on 10 November 2003, 
separated the applicant from the UTARNG effective 10 October 2003 and transferred 
him to the USAR Control Group (Reinforcement).  His NGB Form 22, covering the 
period 3 June through 10 October 2003, indicates his separation resulted from his 
resignation and his service was characterized as honorable.

11.  Orders 05-060-00014, issued by Headquarters, USARC, Fort McPherson, GA on  
1 March 2005, honorably discharged the applicant from the USAR, effective 1 April 
2005.  These orders show he was discharged in the rank of second lieutenant.

12.  The applicant enlisted in the USAR on 20 March 2009, in the rank/grade of 
specialist (SPC)/E-4.

13.  Orders 10-214-00021, issued by Headquarters, 88th Regional Support Command, 
Fort McCoy, WI on 2 August 2010, reduced the applicant from the rank/grade of  
SPC/E-4 to the rank/grade of private (PVT)/E-1.  These orders show he was assigned 
to Company B, 405th Civil Affairs Battalion.

14.  The facts and circumstances surrounding the applicant's discharge is not available 
for review.  However, Orders 10-214-00022, issued by Headquarters, 88th Regional 
Support Command, Fort McCoy, WI on 2 August 2010, discharged the applicant from 
the USAR under the provisions of Army Regulation 135-178 (ARNG and Army Reserve 
Enlisted Administrative Separation), by reason of unsatisfactory participation.  His 
service was characterized as UOTHC.

15.  The Army Discharge Review Board denied the applicant's request for a change of 
his character of service and reason for discharge on 5 June 2013.

16.  The applicant provides:

   a.  A letter from his attorney and discharge upgrade arguments, wherein he contests 
the jurisdiction and eligibility requirements for receiving a UOTHC discharge, the 
background facts of the applicant's case, the standards for review of the applicant's 
case, the regulation under which the applicant was discharged, and the characterization 
of service an individual should receive for unsatisfactory performance.  Counsel lists the 
applicant's periods of honorable service, explains why he believes the characterization 
of the applicant's service is inconsistent with disciplinary standards at that time, and why 
the applicant's financial hardship should be taken into consideration during the review of 
his case.

	b.  A statement from a USAR Judge Advocate, who states that while serving in the 
capacity as a servicing Judge Advocate, he has never seen a UOTHC discharge or 
recommended giving a Soldier a UOTHC discharge for unsatisfactory participation.  He 
also provides a statement from a UTARNG Judge Advocate who states that out of  
20 administrative separation packets he has drafted or reviewed based on 
unsatisfactory participation, he has never seen a UOTHC characterization of service 
awarded solely for unsatisfactory participation, either via notification or board procedure.  
The UTARNG Judge Advocate acknowledges that while Army Regulation 135-178 
allows for a UOTHC characterization of service, it is not an absolute requirement as the 
regulation also states that a characterization of under honorable conditions (general) 
may be warranted.

17.  The Board should consider the applicant's provided statement and counsel's 
contentions 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 as an officer and enlisted Soldier (to include multiple honorable discharges), the 
orders for his final separation, the lack of a separation packet and whether to apply 
clemency.  The Board found the applicant provided a statement regarding his financial 
issues during service and his post-service conduct and achievements in support of a 
clemency determination; his statement mentions letters of reference, but he provided 
none.  Based on his previous service, the lack of a separation packet and based on a 
preponderance of evidence, the Board determined that clemency was warranted and an 
upgrade of his discharge was appropriate.

2.  The applicant's request for a personal appearance hearing was carefully considered. 
In this case, the evidence of record was sufficient to render a fair and equitable 
decision. As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.
3.  After reviewing the application and all supporting documents, the Board found that 
relief was 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 by his 
separation orders, Headquarters, 88th Regional Support Command Orders 10-214-
00022 dated 2 August 2010 to reflect in Type of Discharge: “Honorable” vice “Under 
other than honorable conditions” and deletion of Additional Instructions:

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 granting the applicant a personal appearance.




	  
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 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 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the ABCMR.  The regulation provides that:

	a.  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.

	b.  Personal appearances before the Board are by invitation of the Board only, and 
are not automatically scheduled at the applicant’s request.  Personal appearances are 
scheduled only when the Board determines a personal appearance hearing is 
necessary.

3.  Army Regulation 135-178, Chapter 13, in effect at the time, provides for the separation 
of enlisted personnel of the USAR and the ARNG for misconduct.  Specific categories 
include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, 
commission of a serious offense, and convictions by civil authorities.  The regulation 
states:

   a.  A Soldier is subject to discharge for unsatisfactory participation when it is 
determined that the Soldier is unqualified for further military service because:  (a.)  The 
Soldier is an unsatisfactory participant as prescribed by Army Regulation 135-91, 
Chapter 4; and attempts to have the Soldier respond or comply with orders or 
correspondence have resulted in the Soldier’s refusal to comply with orders or 
correspondence.  (b.)  A notice sent by certified mail was refused, unclaimed, or 
otherwise undeliverable.  (c.)  Verification that the Soldier has failed to notify the 
command of a change of address and reasonable attempts to contact the Soldier have 
failed.  Discharge action may be taken when the Soldier cannot be located or is absent 
in the hands of civil authorities in accordance with the provisions of paragraph 2-18 and 
Chapter 3, section IV.  

   b.  Characterization of service normally will be UOTHC but characterization as under 
honorable conditions (general) may be warranted under the guidelines in Chapter 2, 
section III.  For Soldiers who have completed entry level status, characterization of 
service as honorable is not authorized unless the Soldier’s record is otherwise so 
meritorious that any other characterization clearly would be inappropriate.  In such 
cases, separation for unsatisfactory participation with an honorable characterization will 
be approved by the separation authority.  As an exception, the separation authority will 
approve separation with service characterized as honorable when an administrative 
separation board has recommended such characterization.

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)	 AR20190006361

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