IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210011819 APPLICANT REQUESTS: in effect, issuance of a discharge document and an upgrade of his under other than honorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2 Letters from the Department of Veterans Affairs (VA) * Several Pages of Electronic Mail (Email) * Certificate of Achievement (COA), dated 12 August 1999 * DA Form 2173 (Statement of Medical Examination and Duty Status) * DA Form 2823 (Sworn Statement) * Memorandum for Record dated 7 August 2000 * 1st Endorsement dated 4 August 2000 * Order 00-274-052 dated 30 September 2000 * DA Form 638 (Recommendation for Award) * Permanent Order 2000-05-01 dated 4 May 2001 * COA dated 8 September 2001 * Memorandum dated 4 November 2001 * Reserve Training Evaluation * Orders 01-337-027 dated 3 December 2001 * DA Form 4187 (Personnel Action) dated 4 December 2001 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect: a. While on his last day of field training at Fort Polk, LA, in 2001, he endured heat stroke and rhabdomylosis. He was treated for dehydration when he was overhydrated and ended up in a coma for almost a week. After this, his body and mind were no longer right and he suffered from depression and other issues throughout the years. b. While trying to obtain a VA loan, he was advised to send in his honorable discharge; however, he only had the one from advanced individual training (AIT). The loan department required a discharge from his U.S. Army Reserve (USAR) service which ended in 2005; however, he did not have what they requested. c. He has contacted numerous agencies to include the VA, the U.S. Army Human Resources Command (AHRC), and the Pentagon; however, there does not appear to be a discharge on file for him. His former unit, the 6250th U.S. Army Hospital, no longer exists. He requests the Board review all available information and provide him with a discharge document. If the decision results in anything other than an honorable discharge, he requests the discharge to be upgraded to an honorable discharge. 3. The applicant enlisted in the USAR on 15 January 1997. He agreed he would incur a statutory military service obligation of 8 years and a contractual obligation of 6 years as a member of a troop program unit (TPU) and 2 years in the Individual Ready Reserve (IRR). 4. He entered active duty for training on 13 August 1997. He successfully completed AIT and he was awarded military occupational specialty (MOS) 91M (Hospital Food Service Specialist). On 24 February 1998, he was honorably released from active duty training (ADT). 5. The complete facts and circumstances of his USAR discharge are not available for review, nor does his record contain an official discharge document. However, information resident in the Soldier Management Services Web Portal managed by AHRC shows on 7 January 2005, he was involuntarily discharged due to unsatisfactory participation. His character of service is listed as under other than honorable conditions. 6. The applicant provides: a. Letter from the VA dated 25 January 2018, which incorrectly notes an honorable discharge for the period 13 August 1997 through 24 February 1998. The applicant was actually honorably released from ADT upon completion of his period of ADT. b. Letter from the VA dated 6 October 2020, which notes his request for a Certificate of Eligibility for Loan Guaranty Benefit was returned because the documentation provided by the applicant showed he received an other than honorable discharge. c. Several emails from October 2020 showing the lengths the applicant went to track down a copy of his discharge. d. 2 COAs, an Army Achievement Medal, and Army Reserve Component Achievement Medal awarded to him throughout his service. e. DA Form 2173 dated 25 May 2000 and an self-authored statement dated 9 June 2000 that shows while on ADT, he fell ill and ended up in the intensive care unit. f. Orders promoting him to the rank/grade of sergeant (SGT)/E-5, effective 1 October 2000. On 3 December 2001, orders reduced him in rank/grade to specialist/E-4 with a date of rank of 6 June 1999. g. Memorandum from the applicant to the Command Sergeant Major, 6250th U.S. Army Hospital, dated 4 November 2001, concerning his reduction in rank. 7. The Board should consider the evidence 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 Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. The applicant requests to be issued a discharge document. The Board noted the available evidence shows he was discharged from the USAR as an unsatisfactory participant. The only discharge document he would have received, provided his command had his correct address, would have been discharge orders. The Board found it must presume regularity in government affairs unless a preponderance of evidence demonstrates otherwise. In this case, the Board determined it must be presumed that discharge orders were issued and that the applicant's command provided him with a copy, or attempted to do so. The Board determined there is no basis for issuing a recreated discharge document. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. 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, United States Code, 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. Army Regulation 135-178 (Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. a. Characterization of Service - The following are characterizations of service authorized by this regulation: (1) Honorable. An honorable characterization 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. (2) General (under honorable conditions). If a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general, under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. (3) Under other than honorable conditions. Service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons b. Discharge Policy - Orders will be issued for separations processed under this regulation. Notice of discharge may be either actual or constructive; actual, as by delivery to the Soldier of the discharge order or certificate; or constructive, when actual delivery of the discharge order cannot be accomplished due to the absence of the Soldier to be discharged. If the Soldier is assigned to a Selected Reserve unit or duty position, receipt of the order directing his or her discharge by the Soldier’s organization at the proper station of the organization will be sufficient notice. The date of receipt of the order by the Soldier’s organization and the reason actual notice was not given will be entered by endorsement on the back of the discharge order. A confirmed copy of the annotated discharge order will be sent by registered or certified mail to the Soldier at the most recent address provided by the Soldier for that purpose. The annotated order, reflecting the date of mailing to the Soldier, will be included in the personnel file. Discharge certificates will not be issued where service is characterized as general, under honorable conditions or as under other than honorable conditions. c. Paragraph 13-1 states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant; 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; a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; 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, of this regulation. d. Paragraph 13-3 states the characterization of service normally will be under other than honorable conditions, but characterization as general under honorable conditions may be warranted under the guidelines in chapter 2, section III, of this regulation. 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. 3. Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. Paragraph 4–15 of this regulation provides for involuntary reassignment for unsatisfactory participation. It states a TPU or IMA Soldier who has completed IET and been awarded an MOS and is not within 3 months of ETS, who fails to participate satisfactorily may be reassigned to the appropriate control group of the IRR. Involuntary reassignment is discretionary and may be made in lieu of discharge proceedings per Army Regulation 135-178, chapter 13, when determined to be in the best interest of the Army. Commanders will not take reassignment action under this paragraph solely to spare a Soldier from administrative separation proceedings for other than unsatisfactory participation per Army Regulation 135-178. 4. 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011819 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1