IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190010918 APPLICANT REQUESTS: * Upgrade his under other than honorable conditions discharge to honorable * In effect, amend his reentry (RE) code so he can reenlist into the Army * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * U.S. Army Reserve (USAR) Reassignment Order with associated amendment * USAR Rank Reduction Order * USAR Separation Order 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 his command did not follow proper protocol; as a result, he was unjustly and illegally discharged. "(He) followed (his) chain of command and was given (his) hardship release for a family emergency, but was ultimately transferred to a different unit, obtained a reduction in rank, and was given an under other than honorable conditions discharge, all without counseling statements, or attending before a board to discuss or appeal a decision." After his discharge, he asked for a DD Form 214 (Certificate of Release or Discharge from Active Duty), but all they gave him was a copy of the DD Form 214 he received after completing his initial active duty for training (IADT). He has been trying to get his records corrected since 2014; because of all that has happened, his life has been put on hold. He has been homeless and affirms he has been to reenlist so that he can both fulfill his commitment and have a steady life without struggling. The applicant provides additional information in a self-authored statement, in which he writes, in effect: a. In April 2009, his father was rushed to a hospital located about an hour from the applicant's hometown. At the time, the applicant was attending college and living in the same city as the hospital; he had enlisted into the USAR, drilled regularly, and had enrolled in his college's Army Reserve Officers' Training Corps (ROTC) program. When he got the call about his father's hospitalization, he immediately notified his USAR commander and told him how severe his father's ailments were; his commander instructed him to take family emergency leave (hardship release). b. His father ended up having triple bypass surgery, and the applicant was the only one who could look after him. His father's health was the applicant's number one priority, and, in the first month after surgery, the applicant made numerous trips to and from his home town to the vicinity of the hospital so that his father could receive follow- up care. The applicant affirms his father's medical emergency forced him to withdraw from his school's spring semester. The entire time, however, he kept his chain of command informed of his situation. He contends the phone calls were always positive, and his leadership would just tell him to take care of his family and to keep in touch with updates. He kept his chain of command informed, but was unable to attend any drills in May 2009. c. His father could not work because of his medical condition; this, coupled with the fact the applicant was in school, meant the applicant's family could not pay the mortgage and faced the possible loss of their home to foreclosure. The applicant asked his commander for a hardship release; his chain of command was fully supportive and granted the applicant's request. The applicant states he would call his unit for advice about the foreclosure process and on how to help his family keep their home, but his chain of command never offered any useful guidance. While he was on leave, they transferred him to a new command, reduced him in rank, and discharged him under other than honorable conditions. His chain of command never told him what they were doing, nor did they counsel him or provide him with any paperwork showing why he was being separated. d. He is requesting this upgrade because he received good ratings for his military service, and he exceeded standards in duty performance and personal conduct. He attended his monthly drills and had no negative counseling sessions. Over the past 3 years, various people have told him, in effect, his discharge resulted from "bad paperwork." He cannot afford the $15,000 needed to hire an attorney to represent him so that he can overturn what occurred. e. When he started this process, he simply wanted to reenlist and continue what he started. He met with the recruiting battalion commander, and they initially told him he would be able to reenlist with a simple waiver; however, after numerous attempts, they disapproved his reenlistment. The applicant states the reenlistment regulation changed, and the amended eligibility requirements stated his character of service as nonwaivable. While he indicates he is no longer eligible to reenlist due his age, he still wants to attend school, buy a house, and use his Department of Veterans Affairs (VA) benefits. f. The applicant provides the VA's definition of an under other than honorable conditions character of service, which essentially describes it as the military's most severe administrative discharge. In most cases, Soldiers with an under other than honorable conditions discharge cannot reenlist and are not entitled to VA benefits. The applicant additionally provides VA's criteria for its various programs, to include those for education benefits and home loans. g. The applicable Army regulation defines unsatisfactory performance as having an unexcused absence from annual training or missing nine or more drills within a 1-year period; he argues, during the year prior to his discharge, he never missed annual training and, except for May 2008, he attended all drills. He contends his unit is unable to provide him a copy of his separation paperwork, and the only records available are those maintained in his U.S. Army Human Resources Command (HRC) official military personnel file (OMPF). Based on this, he asserts his belief that his paperwork was not properly processed, regulatory protocols were not followed, and his discharge was illegal. 3. The applicant provides documents from his HRC OMPF. 4. The applicant's service records show: a. On 10 January 2007, he enlisted into the USAR for 8 years. b. On 30 May 2007, he entered active duty to complete IADT. Effective 31 May 2007, his chain of command promoted him to private (PV2)/E-2. c. On 3 October 2007, after completing initial entry training (IET), he was awarded a military occupational specialty (MOS), released from IADT with an uncharacterized character of service, and transferred to his Troop Program Unit (TPU). His DD Form 214 shows he was awarded or authorized the National Defense Service Medal and the Army Service Ribbon. At some point prior to 19 December 2008, the applicant's chain of command promoted him to private first class (PFC)/E-3. d. Effective 19 December 2008, orders involuntarily reassigned the applicant to another TPU at the same physical location as his former unit; the authority was Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers). The applicant's service record is void of any supporting documentation for this reassignment. e. The applicant's separation packet is not available for review; however, the record does include his discharge order, which shows, effective 28 October 2009, the applicant was discharged under other than honorable conditions, based on chapter 13 (Unsatisfactory Participation in the Ready Reserve), AR 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations). f. On 22 June 2017, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. (1) The applicant described his father's medical emergency, his efforts to keep his unit informed, and that his unit had granted him a hardship release. He indicated his father was, at that point, doing well, and the applicant had since graduated from college with a bachelor's degree. He wanted his character of service upgraded so that he could finish what he started; he described how he had tried to reenlist, but could not because of his discharge. (2) On 7 May 2018, the applicant personally appeared before the ADRB; following the presentation of evidence, the ADRB determined the applicant's discharge was proper and equitable, and denied the applicant's request. 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. The applicant essentially asserts his chain of command did not follow proper protocol; as a result, he was unjustly and illegally separated. He argues, when his father had a medical emergency, his commander excused his absence and granted him a hardship release. Despite his efforts to keep his chain of command informed, he was involuntarily transferred to another TPU unit, reduced in rank, and discharged in a manner that denied him his due process rights. He implies, while he was on hardship release, his family lost their home to foreclosure and he was homeless. a. During the applicant's era of service, USAR commanders initiated separation action against Soldiers who, per AR 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), were determined to be unsatisfactory participants. (1) Chapter 13 of AR 135-178 required commanders to use the administrative board process to notify Soldiers of a proposed separation action; this procedure mandated the affected Soldier be provided written notice, which advised him or her of the right to appear with counsel before an administrative board. The notice could be delivered in person or via certified mail; however, if, after 30 days, the Soldier could not be reached or the certified mail was either returned or marked as undeliverable, the separation authority could deem the lack of a response as a waiver of rights and direct the Soldier's separation. (2) An under other than honorable conditions character of service was normally given to Soldiers discharged for unsatisfactory participation, but, when warranted, could also be granted a general discharge under honorable conditions. b. The absence of the applicant's separation packet means administrative irregularity occurred in the retention of his military records and we are unable to determine the specific circumstance(s) that led to his discharge. (1) In view of the fact his service record contains his separation order, which affirms his under other than honorable conditions discharge, the Board must presume the applicant's leadership completed his separation properly. (2) This presumption notwithstanding, AR 635-8 (Separation Processing and Documents) and AR 600-8-104 (Army Military Human Resources Records Management) both require supporting documents for an approved separation action to be maintained in the affected-Soldier's OMPF. c. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 7. Regarding the applicant's request to upgrade his RE Code, the applicant's available service record does not state what RE Code he received as a result of his under other than honorable conditions discharge; however, regulatory guidance shows the following: a. The version of AR 601-210 (Active and Reserve Components Enlistment Program) that was in effect at the time of the applicant's separation did not state an under other than honorable conditions separation was nonwaivable. The regulation provided the following list of Army RE Codes: * RE-1 – applied to Soldiers who were qualified for enlistment, if all other criteria were met * RE-3 – last period of service had a waivable disqualification * RE-4 – disqualification nonwaivable for reenlistment b. On 8 February 2011, the Army released an updated version of AR 601-210; paragraph 4-23 (Nonwaivable Disqualifying Separations or Discharges) stated an under other than honorable conditions discharge could not be waived. 8. In regard to his DD Form 214, ending 3 October 2007 and issued upon completion of IET/IADT: a. At the time the applicant separated, regulatory guidance stated an uncharacterized character of service was given to separating Soldiers in an entry-level status; Soldiers remained in an entry-level status until they had completed more than 180 days of continuous active duty. However, the current separation regulation states Reserve Component (RC) Soldiers will receive an honorable character of service (unless directed otherwise by the separation approval authority) after they have completed IET, been awarded an MOS, and the RC Soldier then reports for duty at a follow-on unit of assignment. b. The available evidence shows the applicant was ordered to IADT/IET and awarded an MOS; following his separation, he returned to his USAR unit. Although, based on then-current regulatory guidance, his DD Form 214 properly reflects a characterization of "uncharacterized," it would be appropriate to revise his character of service to honorable, given current guidance, and in the interest of equity. 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, his active duty for training and return to his unit, his involuntary reassignment, 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 a statement, but no further 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 and reenlistment code as applicable the applicant received upon separation was not in error or unjust. The Board concurs with the correction as stated in the Administrative Note(s) below. 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 not warranted. 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, except for the correction stated in the Administrative Note(s) that follow, 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. ADMINISTRATIVE NOTE(S): During the review of the applicant’s records, it was determined that he was ordered to active duty, successfully completed required training, was awarded an MOS and returned to his Reserve Component unit of assignment. In accordance with Army policy and as a matter of equity, the applicant’s DD Form 214 for the period of service ending 3 October 2007 should be corrected as follows: item 24 (Character of Service) – “Honorable” vice “Uncharacterized.”. 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. a. The regulation stated an unsatisfactory participant was a Soldier who accrued nine or more unexcused absences from scheduled drills during a 1-year period. A Soldier was also considered an unsatisfactory participant when they failed to attend or complete an entire period active duty for training. b. Unit commanders were required to deliver, either by mail or in person, a letter of instruction to the Soldier pertaining to his/her unexcused absence; the regulation also stipulated a copy of such notices were to be placed in the Soldier's military personnel file. c. The unit commander could excuse a Soldier's absence, based on sickness, injury, or circumstances beyond the Soldier's control. The commander needed to either have personal knowledge of, or obtain validating documentation that supported the absence; supporting documents included a doctor's certification and affidavits. 3. AR 135-178, in effect at the time, prescribed policies, standards, and procedures for the administrative separation of Reserve Component Soldiers. a. Chapter 3, section III (Separation Using the Administrative Board Procedure). (1) When required by the regulation, the Soldier would be provided written notice, informing the Soldier of the following; the: * Basis for the separation action and whether the proposed separation could result in discharge from the Army or release from the Army's control * Least favorable character of service that could be imposed by the separation authority * Right to obtain copies of the documents that would be forwarded to the separation authority * Right to counsel * Right to present his/her case, and appear with counsel, before an Administrative Board; alternatively, present written statements in his/her own behalf, vice board proceedings * Right to submit a conditional waiver of the hearing, contingent on the separation authority's approval of a higher character of service than that allowed under the respective provision used to separate the Soldier (2) The commander was to give the Soldier a reasonable period of time to respond; failure to respond within 30 calendar days from the date of the notice constituted a waiver of rights. b. Chapter 13 (Unsatisfactory Participation in the Ready Reserve). Commanders could initiate separation action when a Soldier was found to be an unsatisfactory participation, per AR 135-91. (1) Before separation action could be initiated, commanders had to have made attempts to contact the Soldier and the Soldier refused to comply, and/or was sent notices via certified mail, but the mail was refused, unclaimed, or undeliverable. (2) An under other than honorable conditions character of service was normally given to Soldiers discharged under this chapter, but the Soldier could also be granted a general discharge under honorable conditions, when warranted. (3) Commanders were required to use the Administrative Board Procedure when initiating chapter 13 separation action. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness (The Honorable Robert L. Wilkie) 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. 5. AR 635-200 states a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status, except under specific circumstances. For Army National Guard (ARNG) and USAR Soldiers, entry level status begins upon enlistment in the Army National Guard or U.S. Army Reserve and terminates for Soldiers ordered to IADT for one continuous period- 180 days after beginning training or Soldiers ordered to IADT for the split or alternate training option-90 days after beginning Phase II (advanced individual training). (Soldiers completing Phase I (basic training or basic combat training) remain in entry level status until 90 days after beginning Phase II. 6. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system. a. It states a DD Form 214 will be prepared for Reserve Component (RC) Soldiers awarded an MOS even if active duty is less than 90 days. RC Soldiers completing active duty that results in the award of a military occupational specialty (MOS), even when the active duty period was less than 90 days (for example, completion of the advanced individual training component of the Army National Guard of the United States (ARNGUS) Alternate Training Program or USAR Split Training Program). When a RC Soldier successfully completes initial active duty training the character of service is Honorable, unless directed otherwise by the separation approval authority. b. Paragraph 7-3 (The Separation Packet) states early separation approval documents will be transmitted for inclusion in the affected-Soldier's OMPF. 7. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 8. AR 601-210, in effect at the time, did not show an under other than honorable conditions separation was nonwaivable. a. The regulation included the following list of Army RE Codes: * RE-1 – applied to Soldiers who were qualified for enlistment, if all other criteria were met * RE-3 – last period of service had a waivable disqualification * RE-4 – disqualification nonwaivable for reenlistment b. Paragraph 4-23 (Nonwaivable Disqualifying Separations or Discharges), in the revised version of AR 601-210 released 8 February 2011, stated an under other than honorable conditions discharge could not be waived. 9. AR 600-8-104 states case files for approved separations will be placed in the Soldier's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010918 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010918 8 ABCMR Record of Proceedings (cont) AR20190010918 7