IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210007897 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 6 April 2021, with self-authored statement FACTS: 1. The applicant states he is requesting an upgrade of his discharge due to the fact that he followed orders, but was still unable to find an answer to his issue. Unfortunately, he does not have specific dates, as he was young and did not understand the impact keeping records would have in the future. a. His issue stemmed from not being able to pass the run portion of the Army Physical Fitness Test (APFT). At that time, their leaders were telling them that if the failed two consecutive APFTs, they would be discharged; they described it as the Army’s way of "cutting the fat." b. The reason he could not pass the run was the fact that he had knee surgery following a football accident when he was 17. His knee never fully recovered, which was very apparent about half way through his run, when he would get severe pain. He explained this issue to his squad leader as soon as it arose. The squad leader advised the applicant he would need to get a waiver or he would keep failing. He further directed the applicant to go to MacDill Air Force Base (AFB), as he would not be able to obtain a waiver through his unit. He followed this guidance, but when he spoke to the medical department at MacDill AFB, they advised him he could not obtain a waiver from them and that he would have to go through his unit to get one. Upon explaining this to his squad leader, he was directed to their platoon medic, who told him to return to MacDill AFB. It should be noted that during this time, he had a packet from his doctor showing he did, in fact, have the surgery. He went back and forth about three more times, explaining the whole story every time to different leaders in the medical unit at MacDill AFB, only to be rejected and returned to his unit. His squad leader then directed him to his platoon sergeant, who told him to go to MacDill AFB to obtain a medical waiver. He explained very thoroughly to his platoon sergeant what he had gone through over the past month, but his only answer was to go to MacDill AFB and get the waiver, or be discharged. c. During this time, there were a few Soldiers from his platoon who stopped showing up to drill. When the sergeant spoke about them, he would say they left because it was the easy way to get honorably discharged, since the Army was "cutting the fat." When the applicant heard this it hit home with his situation, as he did not want to be discharged UOTHC due to failing the APFT. Once the next APFT came around, he decided not to show up to drill. After that, he never returned. d. During this time, he was under the impression that he would receive an Honorable Discharge Certificate at some point. He never received a discharge or discharge paperwork. It was not until he contacted the National Archives, in 2015, that he discovered he had received an UOTHC discharge. e. At that time, he was unaware of the discharge upgrade process. He was informed about the process when he inquired about joining a Reserve Officers’ Training Corps program and was advised he would not be eligible with his current discharge. f. He understands he made a mistake by not attending drill and takes full responsibility for that, but though he was doing the right thing at the time based upon the guidance he received. If his discharge is upgraded, he will enter the National Guard to finish what he started. He believes he has become a great leader over the years, and now he has a lot to offer the military, in terms of leadership and knowledge. He has seen a doctor and a chiropractor for his knee and has been training to run further distances. All he hopes to gain from this process is an honest decision and possibly an opportunity to serve his country, once again, in a much greater capacity. 2. The applicant underwent a pre-enlistment medical examination on 12 May 2008. His record is void of any indication he suffered from a prior knee injury or had surgery previously. 3. The applicant’s DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve (USAR) on 12 May 2008. 4. The applicant’s enlistment documents include a Reserve Annex which contains a Certificate and Acknowledgement USAR Service Requirements and Methods of Fulfillment. This document shows the applicant was explained the service requirements and methods of fulfillment of his Reserve service obligation. It further shows he was scheduled to return to the Military Entrance Processing Station on 9 October 2008 to enter Initial Active Duty Training consisting of Basic Combat Training and Advanced Individual Training in Military Occupational Specialty 31B (Military Police). This form also shows the applicant acknowledged his understanding that if he failed to participate satisfactorily in unit training, he would be declared an unsatisfactory participant and, by law, subject to order to 45 days of active duty for training or a period of active duty that will not cause his total active duty to exceed 24 months. He would also be subject to separation from the Selected Reserve of the Ready Reserve, as appropriate, either by reassignment or discharge which may result in a pay grade reduction and an other than honorable characterization of his military service. 5. Although the applicant readily admits to not attending unit drills, the specific facts and circumstances surrounding the applicant’s separation are not available in his Army Military Human Resource Record. However, his record does contain: a. Orders Number 08-259-00621, issued by Headquarters, 81st Regional Readiness Command, Birmingham, Alabama on 15 September 2008, which shows the applicant was involuntarily reassigned from the Transients, Trainees, Holdees, and Students (TTHS) account to the 810th Military Police Company located in Tampa, Florida, effective 15 September 2008. The Additional Instructions portion of these orders show this was an involuntary reassignment for the convenience of the government. b. Orders Number 14-120-00047, issued by Headquarters, 81st Regional Support Command, Fort Jackson, South Carolina on 30 April 2014, which shows the applicant was discharged from the USAR under the authority of Army Regulation 135-178 (Separation of Enlisted Personnel), effective 5 May 2014. The type of discharge was categorized as UOTHC. 6. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. An ADRB letter, rendered on 1 April 2019, informed the applicant that after careful review of his application, military records, and all other available evidence, the ADRB determined that he was properly and equitably discharged and denied his request. 7. Army Regulation 15-185 (Army Board for Correction of Military Record) 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. The ABCMR is not an investigative body. 8. The Board should consider the provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The applicant’s record and supporting documentation is void documentation of a medical condition that would have impeded his ability to pass the Army Physical Fitness Test and he provided none on his own behalf. Based on the preponderance of evidence available for review the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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 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. Army Regulation 15-185 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. The ABCMR is not an investigative body. 2. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures) provides guidance governing absences from Ready Reserve training for enlisted personnel. a. A Soldier becomes an unsatisfactory participant when he has accrued nine or more unexcused absences from scheduled drills during a 1-year period. b. After accruing four unexcused absences in a 1-year period, the unit commander is required to notify the Soldier via a prescribed letter of instructions – unexcused absence. The delivery of this notice will be either in person or by certified mail, restricted delivery, return receipt requested. After each additional unexcused absence in a 1-year period, the Solder will receive a similar letter of instructions. Each of these notices will be filed in the Soldier’s military personnel records. 3. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted Reserve Component personnel. a. Paragraph 2-9a provides that an honorable characterization of service is appropriate when the quality of the Soldier'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. Paragraph 2-9b provides that a general (under honorable conditions) characterization of service is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. c. Paragraph 2-9c provides that service may be characterized as UOTHC when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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 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//