IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210013922 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of the DD Form 149 (Application for Correction of Military Record) 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 is seeking an upgrade to obtain educational benefits and based on a class action review of discharges after 2001. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 27 March 2000. His contract shows he agreed to serve 6 years assigned as a member of a troop program unit (Ready Reserve) and the two remaining years of his 8-year military statutory obligation in the Individual Ready Reserve (IRR). He entered active duty on 6 April 2000, for the purpose of completing his initial active duty for training (IADT). He completed IADT on 1 August 2000, was awarded military occupational specialty (MOS) 71L (Administrative Specialist), and was released from active duty (REFRAD). The DD Form 214 he was issued upon his REFRAD shows his service was uncharacterized, his type of separation was "Released from Active-Duty Training," and the narrative reason for separation was "Completion of Required Active Service." 4. The applicant was discharged under honorable conditions from the USAR on 30 March 2004 under Army Regulation 135-178 (Army National Guard and Reserve Enlisted Administrative Separations). The specific authority paragraph justifying the separation was not included on the orders, and the available records do not contain any documentation of his USAR service or reason for discharge. 5. With respect to the applicant's DD Form 214 that shows an uncharacterized characterization of service upon being REFRAD for completion of IADT: a. Regulatory guidance in effect at the time he was separated stated an uncharacterized separation is an entry-level separation; for Soldiers ordered to initial ADT, entry-level status terminates 180 days after beginning training. However, current guidance states Reserve Component (RC) Soldiers completing active duty that results in the award of an MOS, even when the active-duty period was less than 90 days (for example, completion of the advanced individual training component of Army National Guard of the U.S. (ARNGUS) Alternate Training Program or USAR Split Training Program) will receive a character of service of honorable unless directed otherwise by the separation approval authority. b. The available evidence shows the applicant was called to active duty for training and awarded an MOS. Although his DD Form 214 properly reflects his characterization of service as uncharacterized in accordance with regulatory guidance in effect at the time, based on current guidance and in the interest of equity the characterization of service should read as honorable. 7. In regards to an upgrade of his USAR general discharge, his record is void of available evidence to provide the board with specific circumstances or a reason that resulted in him being discharged with an under honorable conditions (general) characterization of service. a. The available evidence does provide that he was discharged prior to reaching his expiration term of service. He agreed to serve 6 years in a TPU status which established his expiration term of service as 27 March 2006. b. Army Regulation 135-178, in effect at the time provides characterization of service is of great significance to the soldier. It must accurately reflect the nature of service performed. The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel outlined in the Uniform Code of Military Justice, Army Regulations, and the time-honored customs and traditions of the Army. It provides, (1) If a soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the soldier’s conduct or performance of duty outweighs positive aspects of the soldier’s military record. (2) When authorized, a characterization of under honorable conditions is awarded 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. It will not be issued to soldiers upon separation for expiration of their service obligation. 8. The Board should consider the applicant's statement and his overall military service in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records the Board determined the applicant’s records were absent available evidence to provide the Board with specific circumstances or a reason that resulted in the applicant being discharged with an under honorable conditions (general) characterization of service. However, the Board determined based on regulatory guidance that USAR and ARNG Soldiers are granted an honorable discharge if they complete their active-duty training, receive an MOS and are returned to their units. The applicant was awarded military occupational specialty (MOS) 71L (Administrative Specialist) and was released from active duty (REFRAD). Based on this, the Board agreed the applicant’s discharge characterization of service should reflect honorable for the period ending 1 September 2000. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 1 September 2000 to show the characterization of service as honorable. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his under honorable (general) conditions discharge to honorable. 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, U.S. 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. Paragraph 1-4 provided that a DD Form 214 will be prepared for personnel at the time of their retirement, discharge, or release from the Active Army. Personnel included are members of the ARNGUS and USAR separated after completing 90 days or more of continuous ADT, and those separated after completing initial active duty for training that resulted in the award of an MOS, even though the active duty was less than 90 days. 3. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management. Specifically, it references instruction related to the preparation of the DD Form 214. It states: a. A DD Form 214 will be prepared for RC Solders completing active duty that results in the award of a MOS, even when the active-duty period was less than 90 days (for example, completion of the advanced individual training component of ARNGUS Alternate Training Program or USAR Split Training Program). b. "When a RC Soldier successfully completes initial active duty training the character of service is Honorable unless directed otherwise by the separation approval authority." 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 3 described the different characterizations of service. Section II (Terms) of the glossary states that entry-level status for Soldiers in the ARNG and USAR begins upon enlistment in the ARNG or USAR and, for those Soldiers ordered to IADT for one continuous period, terminates 180 days after the commencement of IADT. 5. Army Regulation 135-178 (Enlisted Administrative Separations) establishes the policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard/Army National Guard of the United States and the U.S. Army Reserve., It provides: a. Characterization of service is of great significance to the soldier. It must accurately reflect the nature of service performed. The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel outlined in the Uniform Code of Military Justice, Army Regulations, and the time-honored customs and traditions of the Army. b. 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. (1) An honorable characterization may only be awarded a soldier upon completion of his or her service obligation, or where required under specific reasons for separation, unless an uncharacterized description is warranted. When a soldier is discharged before expiration of the service obligation for a reason for which an honorable characterization is discretionary, the following considerations apply: (a) Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). (b) A soldier will not necessarily be denied an honorable characterization solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art 15. (c) Conviction by a general court-martial or by more than one special court- martial does not automatically rule out the possibility of awarding an honorable characterization of service. (d) An honorable characterization may be awarded when disqualifying entries in the soldier’s military record are outweighed by subsequent honorable and faithful service over a greater period of time during the current term of service. (e) It is a pattern of behavior and not an isolated instance which should be considered the governing factor in determining the character of service. (f) Unless otherwise ineligible, a soldier may receive an honorable characterization of service if he or she has, during his or her current enlistment, or any extension thereof, received a personal decoration. (2) General, (under honorable conditions). If a soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the soldier’s conduct or performance of duty outweighs positive aspects of the soldier’s military record. (a) When authorized, a characterization of under honorable conditions is awarded to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (b) A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization. It will not be issued to soldiers upon separation for expiration of their service obligation. 6. 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 [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// ABCMR Record of Proceedings (cont.) AR20210013922 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1