IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190012365 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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 10 July 2019 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 completed six years of service and received a UOTHC for some reason he does not know. 3. The ABCMR may provide a review and recommendation to the Indiana Army National Guard (INARNG) but does not have the authority to correct the applicant's NGB Form 22 (Report of Separation and Record of Service) as it is a State document. 4. The applicant enlisted in the INARNG on 23 March 1978. 5. The applicant commenced his initial active duty for training on 25 May 1978, completed training and was awarded military occupational specialty 94B (Food Service Specialist), and was released from active duty on 10 October 1978. He was returned to his INARNG unit with an honorable characterization of service. 6. Between 1 May 1982 and 5 December 1982, the applicant accumulated ten unexcused absences from scheduled unit drills. 7. The applicant's ARNG unit commander initiated separation actions on 6 December 1982. He advised the applicant he had the right to present any rebuttal or statements at the next monthly assembly. The election block on applicant's acknowledgement form is blank and does not show a signature. 8. The applicant was discharged from the ARNG on 25 February 1983, under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), by reason of unsatisfactory participation. The NGB Form 22 he was issued shows the reason for separation as unsatisfactory participation and shows his service was characterized as UOTHC. The NGB Form 22 also shows the applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) effective the date of separation. 9. Orders Number D-11-908857, issued by the USAR Personnel Center (ARPERCEN), St. Louis, MO on 26 November 1984, discharged the applicant from the USAR effective 26 November 1984, with a UOTHC service characterization. 10. The Board may consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no error or injustice in the applicant's discharge from the INARNG for unexcused absences, but the Board noted that the applicant was transferred to the USAR to complete his service obligation. The Board agreed that while the characterization of his service with the INARNG was appropriate, for the USAR to apply the same characterization was inequitable, considering that there was no evidence in the applicant's service record indicating he committed any misconduct while serving in the USAR. Based on a preponderance of the evidence, the Board determined that, while the applicant's Reserve service was not fully honorable based on his unsatisfactory participation in the INARNG, the characterization of his service upon his discharge from the USAR should be upgraded to under honorable conditions (general). 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders Number D-11-908857, issued by the USAR Personnel Center (ARPERCEN), St. Louis, MO on 26 November 1984, to show the applicant's service was characterized as under honorable conditions (general). 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 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 3. Army Regulation 135-91 prescribes the policies and procedures governing the various types of service obligations and participation requirements, including the regulation covering enforcement procedures regarding unsatisfactory participation. It states: a. A Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled inactive duty training (IDT)s occur during a one year period. b. Soldiers are unsatisfactory participants if without proper authority they fail to attend or complete an entire period of active duty. This applies to a soldier of a unit or USAR Control Group active duty. c. When it has been determined that an ARNG or USAR Soldier is an unsatisfactory participant, the immediate commander will initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. This regulation provided that: a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 5. 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) AR20190012365 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012365 4 ABCMR Record of Proceedings (cont) AR20190012365 3