ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 29 March 2021 DOCKET NUMBER: AR20200002403 
APPLICANT REQUESTS: The applicant requests upgrade his under honorable conditions (general) discharge to honorable 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
NGB Form 22 (Report of Separation and Record of Service) for the period ending 8 July 1993 

. 
discharge orders 

. 
Retirement Points History Statement 


FACTS: 
1. 
The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 was discharged without actual notice.  He believes his record to be unjust because at the time he was going to drill once a month and his two weeks in Fort Hood.  He wasn't around for the discharge because when he moved to Houston, they gave him the run around and never gave him a full discharge or the right to see unit leadership.  They gave him a discharge instead.  He got his discharge paperwork from a request year prior to his applicant and tried to prove his service for various personal reasons. 

3. 
On 4 May 1988, at the age of 21 years old, the applicant enlisted in the Army National Guard (ARNG) for a term of 8 years. He completed his individual active duty training on 10 November 1988 and received a DD Form 214 (Certificate of Release or Discharge from Active Duty) for being released from Individual Active Duty Training. 

4. 
On 1 June 1990, the applicant was discharged from the ARNG and transferred to the US Army Reserve (USAR) Control Group (Annual Training) with a under honorable conditions (general) under the authority of National Guard Regulation 600-200 (Enlisted 

Personnel Management) paragraph 8-27g. The applicant's NGB Form 22 shows he had completed 2 years, 9 months, and 28 days of his 8 year contractual obligation. He was discharged without actual notice. He was awarded or authorized the Army Service Ribbon. The applicant's separation packet was not available for the Board's review. 

5. 
On 18 August 1992, at the age of 25 years old, the applicant enlisted in the ARNG for a period of 3 years. 

6. 
On 4 December 1992, he received a letter for an unexcused absence on 8 November 1992. The applicant signed for the letter on 10 December 1992. 

7. 
On 22 February 1992 [sic], he received a letter for an unexcused absence from 20-21 February 1993. The applicant signed for the letter on 9 March 1993. 

8. 
On 7 March 1993, the applicant received a letter for an unexcused absence on 6-7 March 1993.  He signed for the letter on 12 March 1993. 

9. 
On 11 March 1993, the applicant was notified of his commander's intent to separate him for unsatisfactory participation under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), chapter 6. The applicant signed for the letter on 16 March 1993.  The complete separation packet, including the applicant's election of rights, was not available for the Board's review. 

10. 
On 8 July 1993, the applicant was discharged from the ARNG with an uncharacterized discharge, under the provisions of National Guard Regulation 600-200, paragraph 8-26n.  He had completed 10 months, and 21 days of his 3-year contractual obligation.  He did not have a primary military occupational specialty at the time of his discharge. He was authorized or awarded the National Defense Service Medal and the Army Service Ribbon. 

11. 
The applicant states he was not notified of his separation but he was attending drills and his two-week requirement at Fort Hood at the time of his separation on 1 June 1990. He wasn't around for the discharge because he had moved to Houston and his unit gave him the run around. 


a. 
His record shows, he enlisted in the ARNG at the age of 21 years old. His NGB Form 22 for the period ending 1 June 1990 shows he was discharged, was not available for signature and his service was characterized as under honorable conditions (general) discharge. 

b. 
A review of his record reveals administrative irregularity in the proper retention of his military records, specifically, his record is void of his separation packet to include his election of rights concerning separation prior to being separated on 1 June 1990. 

c. 
National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, states Soldiers may be discharged from the ARNG for unsatisfactory 


participation. Additionally, it provides transfer of soldiers within in the state due to change of address will be processed according to Army Regulation 135-91, Chapter 5, Section II. 
d. There is no evidence that he was declared an unsatisfactory participant according to Army Regulation.  Additionally, there is no information in the regulation regarding discharging Soldiers without notice. 
12. In reaching its determination, the Board can consider the applicant's petition, his service record and post-service accomplishments in light of the published DOD guidance on equity, injustice, or clemency. 
BOARD DISCUSSION: 
The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for liberal consideration and clemency for consideration of discharge upgrade requests. The Board considered the applicant's statement, his available record of service, his two periods of service, the absence of one separation packet, correspondence pertaining to his second separation and the reasons for his separation. The Board considered the absence 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 the applicant received upon separation was not in error or unjust. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. 
X 
CHAIRPERSON 
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 Army Board for Correction of Military Records (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 (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It states, notwithstanding the notification provisions of Army Regulation 135-178 (ARNG and Army Reserve Separation of Enlisted Personnel), Soldiers who are unsatisfactory participants to be discharged from the State ARNG only, will be given 15 days from the date found on the official mail return receipt, or the date they acknowledged receipt if hand delivered, to respond to notification of initiation of discharge actions. 

3. 
Army Regulation 135-178, in effect at the time, states when the reason for separation requires the Notification Procedure, the commander will notify the Soldier in writing that his separation has been recommended. The commander will cite specific allegations on which the proposed action is based and the specific provisions of the regulation authorizing separation. The Soldier would be advised of the least favorable characterization of service he could receive. He would be advised of the following rights: 

. 
to consult with counsel 

. 
to submit matters on his own behalf 

. 
to obtain copies of document that would be sent to the separation authority 

. 
to present his case before an administrative separation board if he had more than 6 years of service 

. 
to waive his rights 



4. 
Army Regulation 135-91 (Service Obligations, Methods of Fulfilment, Participation Requirements, and Enforcement Procedures), defines ARNGUS and USAR service obligations and prescribes policy and procedures governing the various types of service obligations and participation requirements. Chapter 4 governs absences and provides, in part, that: 


a. The unit commander or acting commander is authorized to excuse absences. Any absence not authorized by the approving official is considered unexcused. A Soldier is an unsatisfactory participant when nine or more unexcused absences occur during a 1-year period. Unless the absence is authorized, a Soldier failing to attend a scheduled single or multiple unit training assembly (MUTA), will be charged with an unexcused absence. When the absence involves a MUTA, the charge will be for one unexcused absence for each 4-hour period not attended, but not to exceed four unexcused absences. 
b. 
Unit commanders will notify Soldiers with unexcused absence(s) by prescribing a letter of instructions-unexcused absence [U-Letters]. The first notification commences with the fourth unexcused absence and each succeeding unexcused absence up to, and including the ninth absence in a 12-month period. 

c. 
Delivery of the letter will be either in person or by U.S. mail. If mail is used in lieu of deliver in person, the first notification will be sent by certified mail, return receipt requested and the remaining notification(s) will be sent by first class mail. The notice will be mailed during or immediately following the unit training assembly (UTA) or multiple unit training assemblies (MUTA) from which absent. Whether notices required are delivered in person or sent by U.S. mail, a copy of each notice, and the following will be place in the soldier’s personnel file. 


(1) 
When the notices are personally delivered, the Soldier's signature will be obtained on the file copy as acknowledgment of receipt. 

(2) 
When certified mail is used, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered. Mail refused, unclaimed, or otherwise not delivered may not be used as a defense against unexcused absences when the notices were correctly addressed. 

(3) 
When first class mail is used, a copy of the notice and the envelope showing the notice was sent to the soldier's most recent mailing address. Also, the individual mailing the notice will prepare an "affidavit of service by mail." Mail refused, unclaimed, or otherwise not delivered may not be used as a defense against unexcused absences when the notices were correctly addressed; and 

(4) 
The commander's statement showing his or her decision as to whether the reason which prevented the soldier from attending training assembly which resulted in a declaration of unsatisfactory participation was valid or any emergency. The facts or circumstances on which the decision is based will be included in the statement. 

d. 
When it has been determined that an ARNGUS or USAR enlisted soldier is an unsatisfactory participant, the immediate commander will initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant as prescribed. 


5.  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. 
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, 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. 

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. 


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