IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210016882 APPLICANT’S REQUEST: * Upgrade of the under other than honorable conditions character of service listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 September 1991 * Change current reason for separation, on his DD Form 214, ending 16 September 1991, to show "Other," "Secretarial Authority," or something less discriminatory for item 28 (Narrative Reason for Separation) * Amend item 27 (Reentry Code) by removing the current entry of "NA" and replacing it with "RE-1" (fully qualified for reentry) * Remove all records of any charges pertaining to the applicant's activation in 1990 to 1991 * Permission to appear personally before the Board, via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enclosure 1 – Power of Attorney * Enclosure 2 – DD 149 * Enclosure 3 – Documents related to separation under chapter 14 (Separation for Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) and court-martial charges * Enclosure 4 – Applicant's self-authored statement * Enclosure 5 – DD Form 214 * Enclosure 6 – U.S. Army Human Resources Command (HRC) response to applicant's Freedom of Information Act request FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Review Discharge Board or the Army Board for Correction of Military Records (ABCMR). 2. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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. 3. The applicant states, when he learned his character of service was under other than honorable conditions, he was completely shocked; for 40 years, he believed his discharge was honorable. a. The applicant offers details of his childhood. He goes on to state that, in 1979, he enlisted the Army and served in California and Germany before the Army released him from active duty. Following his separation, he joined the U.S. Army Reserve (USAR). b. While a member of the USAR, orders mobilized his Troop Program Unit (TPU) and sent it to Fort McCoy, WI, to support of Operations Desert Shield/Desert Storm. Although his leadership assigned him a barracks room during the mobilization, the applicant stayed mostly off-post. During weekends, Soldiers in the barracks hosted parties, attended by Soldiers and civilians alike; the Soldiers, including the applicant, would open up their individual rooms for party participants to come and go. At the time, no one knew who used drugs; however, the applicant later learned the local police had arrested some of the civilian partygoers for marijuana and cocaine possession, and he believes those arrests led to his unit's subsequent health and welfare inspection. c. During the health and welfare inspection, the command found marijuana in one of the Soldier's room and cocaine in the applicant's room. The applicant declares he had never done drugs in his life and had no idea where the cocaine came from; even the inspector saw how shocked the applicant appeared and mentioned this to the applicant's chain of command. The applicant's leadership ordered both the applicant and the other Soldier to take drugs tests; the command never showed the applicant any documentary proof but claimed the applicant had failed his drug test, while the other Soldier had passed. d. They took the applicant to the military police (MP) station for questioning, and the applicant requested an attorney, but they never provided one. The applicant's company commander told the applicant to drive to Chicago to speak with a Judge Advocate General (JAG) officer, but when the applicant arrived in Chicago, the JAG officer said he was too busy with a murder case to help him. Upon his return to Fort McCoy, the applicant discovered the previous company commander had been replaced; the new commander (Captain CPT)) immediately ordered the applicant to remove his rank (at the time, the applicant was a Staff Sergeant (SSG)). The commander then forced the applicant to walk around the post as a private (PV1)/E-1, despite not allowing the applicant any due process. e. Because the end of the applicant's USAR enlistment contract was near, the command directed him to undergo a physical; then, the next week they said he needed another physical, and this continued for another 3 or 4 weeks. About this same time, they moved the applicant to work on rail trains. In October 1991, the applicant's enlistment contract was over, as were his mobilization orders; when he left Fort McCoy, no one spoke of his discharge or what the applicant's future might be, so the applicant thought he had completed his military service and no longer had to "show up for anything." f. After leaving the Army, the applicant worked in a variety of positions, to include a job in irrigation and sprinkler systems, and working in a tire store and an electric store. For the past 17 years, he has done industrial work for a bread factory, where he earned a certificate in Arc Electrical; the job also required him to take a drug test and he passed. Additionally, the applicant is a member of an international theatrical employees union, and, during his membership, he received his license to operate forklifts. He has five children, two of whom are stepchildren, and he has 14 grandchildren. As he nears his retirement, he would like to learn about the benefits for which he is eligible, based on his military service; he points out the only DD Forms 214 he ever received said he had served honorably. He requests the removal of the charges from his record because his chain of command never afforded him his right to an attorney, and they never brought him before any type of board or court-martial trial. 4. Counsel states the separation authority's assignment of an under other than honorable conditions character of service was both in error and unjust. a. Counsel provides arguments as to why the Board has jurisdiction and should waive the statutory time limits associated with the applicant's application. b. Facts. (1) After restating the applicant's personal history, counsel argues he and the applicant have overcome the presumption of administrative regularity because the applicant's command neither provided supporting documentation for the applicant's adverse discharge nor followed any formal separation process. As proof, counsel notes the Army's response to a Freedom of Information (FOIA) records request, wherein the Army stated it found no records in its iPERMS (Interactive Personnel Electronic Records Management) or SMS (Soldier Management Services) databases. In addition, the documents counsel was able to obtain are incomplete: * A separation memorandum, dated 2 July 1991, contains no entries and is unsigned * A memorandum that transmits court-martial charges states evidentiary enclosures are attached, but no documents are present * A memorandum, dated 9 July 1991, describes the initiation of separation proceedings for "misconduct-abuse of illegal drugs"; paragraph 10 of that document specifically calls for the applicant to undergo a complete medical examination, yet no date or time is provided * A fax coversheet shows documents were sent by a Staff Judge Advocate office; however, counsel affirms neither he nor the applicant can confirm if the fax was actually sent; only a fax number is listed, and there is no organization or office symbol entered (2) Based on a charge sheet (DD Form 458), signed on 2 August 1991 by CPT it appears the command charged the applicant with the following: * "1) aiding and abetting (Ms.) in the wrongful use of cocaine by providing her a mirror to assist her in wrongful ingestion of cocaine, on or about 14 June 1991; * "2) wrongfully possess some amount of cocaine, on or about 14 June 1991; and * "3) wrongfully use(d) marijuana, on or about 17 May 1991" (3) Counsel notes the DD Form 458 does not name an immediate commander; there is no record of receipt by the summary court-martial convening authority; and the part of the form showing the service of charges is blank. Further, no supporting documentation of any kind has been included with the charge sheet, and the charges are, in any case, over broad and lacking in specificity. (4) Counsel contends the applicant's command never conducted any separation proceedings pertaining to the applicant. Army regulations require that, upon the recommendation of an under other than honorable conditions discharge, the command should have afforded the applicant an administrative separation board. However, the Army never provided evidence to support its charges against the applicant. Were it not for a notification the applicant received by mail, he may never have learned about his under other than honorable conditions character of service. c. Discussion. (1) The Army improperly discharged the applicant following multiple procedural errors, regulatory violations, and due process violations. (a) According to "AR 635-200, chapter (sic) 7-18d (Fraudulent Entry – Authority – Convene Board of Officers under Administrative Board Procedure)," the Army had a requirement to conduct an administrative separation board for any Soldier with six or more years, or anyone facing an under other than honorable conditions discharge. In addition, paragraph 2-2 (Notification Procedure – Notice) requires commanders to notify Soldiers of any administrative actions; the applicant received no such notice, and he never obtained any legal assistance whatsoever. (b) Counsel further points out none of the documents obtained show the applicant's signature. In addition, paragraph 2-3 (Notification Procedure – Action by Separation Authority), AR 635-200, requires actions taken by a separation authority to be recorded; no such recording exists. (c) Counsel quotes paragraph 1-19 (Authority to Approve or Disapprove Separation), AR 635-200 (extracted from the 19 December 2016 version of AR 635-200 and not in effect at the time of the applicant's separation); counsel then notes CPT was the only officer in the applicant's chain of command to sign any documents and, according to paragraph 1-19, CPT had no authority to separate the applicant. (d) CPT sought to separate the applicant with an under other than honorable conditions discharge. Counsel quotes paragraph 3-7c (Under Other than Honorable Conditions), AR 635-200 to argue CPT failed to meet any of the criteria set forth in paragraph 3-7c prior to issuing the applicant his under other than honorable conditions discharge. (2) The charge sheet prepared against the applicant is a deficient instrument; the charges listed on the DD Form 458 are unfounded and overly broad. (a) The first charge, dealing with the alleged aiding of (Ms.) in her use of cocaine lacks specificity; in addition, one could conclude, from that way they drafted the charge, that is not the name of a real person, and we have no way of knowing who this individual actually is. Neither the applicant nor his counsel could have mounted a defense if the identity of this person was unknown and no supporting evidence has been included. (b) The second charge, alleging the applicant possessed cocaine, fails to identify the amount of cocaine possessed; this matters because "there are different levels of charges based on the amount an accused is alleged to have in illegal substances." (Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial, in effect at the time, stated the maximum punishment for possession of less than 30 grams of marijuana was a dishonorable discharge and 2-years' confinement, while possession of 30 grams or more resulted in a dishonorable discharge and 5-years' confinement; cocaine possession had no such distinctions in punishment). Stating simply that the applicant had "some amount" of cocaine is a complete travesty; "it is a joke that any legal professional would allow such a poorly worded charge to be utilized in any proceeding." Further, the charge fails to name to location of the alleged cocaine; given the lack of specificity of this charge, the Board must ignored the charge in its entirety and not factored into any separation proceeding. (c) As to the third charge, the documents offer no supporting blood tests or urinalysis results, and claiming the use occurred over a 1-month period is too broad. In support of his arguments, counsel quotes paragraph 14-12c (Commission of a Serious Offense) (extracted from the 19 December 2016 iteration of AR 635-200), and counsel contends, "It can only be assumed that [applicant] was separated for the charge sheet of August 2, 1991, that is full of discrepancies that clearly warrants no action whatsoever against [applicant]." (3) Since his separation, the applicant has lived a law-abiding life, which, counsel contends, is sufficient for this honorable Board to grant clemency. Counsel notes the applicant "left the military under the belief he had honorably served and was categorized with such as his discharge status." Counsel goes on to state, "Instead of letting the stigma of a less than honorable discharge define his life, [applicant] went about rectifying the situation." (4) Conclusion. The Army failed to fulfill its own regulatory requirement to conduct an administrative separation board prior to the applicant's under other than honorable conditions discharge, and it did not address the fact the applicant had accrued more than 6 years of total military service. The applicant's separation is rife with discrepancies, and the lack of supporting evidence shows the applicant's command had no basis for his separation. As such, counsel asks the Board to exercise its authority and grant the requested relief. 5. The applicant's service records show: a. On 2 May 1979, the applicant enlisted into the Regular Army for 3 years. Upon completion of initial entry training and the award of military occupational specialty 27E (TOW/Dragon Repairer), orders assigned him to Fort Ord, CA, and he arrived at his unit, on 12 October 1979. b. Following a subsequent reassignment to Germany and a 4-month extension of his enlistment, orders released the applicant from active duty, on 31 August 1982, and transferred him to the USAR Control Group (Reinforcement). His DD Form 214 shows he completed 3 years, 3 months, and 22 days of his 3-year, 4-month enlistment contract; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the award of the Army Service Ribbon and two marksmanship qualification badges. c. On 7 February 1984, orders transferred the applicant from the USAR Control Group to a TPU. On 11 March 1985, the applicant immediately reenlisted in the USAR for 6 years. Permanent Orders (PO), dated 18 September 1988, awarded the applicant the Army Achievement Medal for meritorious achievement, while serving as a Warehouse Foreman during the period 14 to 25 March 1988. Effective 21 March 1991, orders promoted the applicant to SSG. d. Fourth U.S. Army PO, dated 27 August 1990, ordered the applicant's TPU to active duty for 90 days. TPU orders, dated 27 August 1990, directed the applicant and other unit members to report to Fort McCoy, on 30 August 1990; subsequent amendments extended the unit's term of active duty to 12 months. e. The applicant's separation packet is unavailable for review; however, the applicant's available service record includes an order reducing the applicant to PV1, effective 10 September 1991; the applicant's separation order, dated 16 September 1991; and a DD Form 214, which shows, effective 16 September 1991, the Army discharged the applicant from active duty. The DD Form 214 additionally reflects the following: * Item 12c (Net Active Service This Period) – 1 year and 20 days * Item 13 – Army Service Ribbon, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Achievement Medal, Army Reserve Components Achievement Medal (2nd Award), Overseas Service Ribbon * Item 18 (Remarks) – "DD FORM 214 REISSUED ON 910916"; "THIS DD214 REISSUED TO REPLACE DD 214 DATED 15 SEPTEMBER 1991, WHICH WAS ERRONEOUSLY ISSUED"; "DD214 ISSUD 910915 IS VOID" * Item 21 (Signature of Member being Separated) – contains a signature * Item 24 (Character of Service) – "UNDER OTHER THAN HONORABLE CONDITIONS" * Item 25 (Separation Authority) – "AR 635-200, CHAPTER 10 (Discharge for the Good of the Service)" * Item 26 (Separation Code) – "JFS" * Item 27 (Reentry Code) – "NA (not applicable)" * Item 28 (Narrative Reason for Separation – "FOR THE GOOD OF THE SERVICE" f. The applicant provides the following documents: (1) DD Form 458 (Charge Sheet). (a) In Section II (Charges and Specifications), the charge sheet lists the following specifications for the violation of Article 112a (Wrongful Use, Possession, etc. of Controlled Substances): * On 14 June 1991, the applicant knowingly and willfully aided and abetted (Ms.) in the wrongful use of cocaine by providing her a mirror to help her ingest cocaine * On 14 June 1991, the applicant wrongfully possessed some amount of cocaine * At some point between 17 May and 17 June 1991, the applicant wrongfully used marijuana (b) In Section III (Preferral), item 11, CPT preferred the above-stated charge, on 2 August 1991. In item 12, CPT affirmed that, on 2 August 1991, the accused (applicant) was informed of the charges against him and the name of the accuser. (c) Section IV (Receipt by Summary Court-Martial Convening Authority) is blank. (d) Section V (Referral; Service of Charges) is blank. (2) DD Form 214, with an end date of 15 September 1991. The form shows a signature, in item 21 and lists an honorable character of service, in item 24. 6. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 7. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The absence of the applicant's separation packet means we are unable to determine the complete circumstances that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. This presumption notwithstanding, the version of the military personnel records regulation in effect at the time, AR 640-10 (Individual Military Personnel Records), required case files for an approved separation action to be maintained in the affected Soldier's official military personnel file (OMPF). b. Based on the separation authority listed in the record copy of the applicant's DD Form 214 and the copy of the DD Form 458, provided by the applicant, the documents indicate the applicant requested separation, under chapter 10, AR 635-200, after the preferral of court-martial charges. (1) During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. (2) The Manual for Courts-Martial, then in effect, showed a punitive discharge was one of the available maximum punishments for violations of UCMJ Article 112a (Wrongful Use and Possession of a Controlled Substance). c. Section II (Secretarial Authority), chapter 5 (Separation for Convenience of the Government), AR 635-200, in effect at the time, stated the separation of Soldiers for the convenience of the Government was the prerogative of the Secretary of the Army. Except as delegated by this regulation or by special Department of the Army directives, only the Secretary of the Army's authority could accomplish a separation for the convenience of the Government, following his/her determination that the separation was in the best interests of the Army. d. According to AR 635-5 (Separation Documents), in effect at the time, DD Form 214 preparers were required to enter "NA" for USAR members released from active duty for training. (1) For members discharged for cause, the preparers were to enter the appropriate reenlistment eligibility code, as identified in Chapters 1 (General) and 2 (Qualification for Immediate Reenlistment), and Appendix D (Reenlistment Eligibility Codes), of AR 601-280 (Army Reenlistment Program). (2) During the applicant's era of service, the source of reentry codes changed from AR 601-280 to AR 601-210 (Regular Army and Army Reserve Enlistment Program). Chapter 4 (Waivable and Nonwaivable Enlistment Criteria) stated, in Table 4-1 (Waivable Moral and Administrative Disqualifications), Line AC, that Soldiers last separated "for the good of the service" (i.e. chapter 10, AR 635-200) required a waiver to reenter the Army. According to Table 3-6 (Armed Forces RE Codes, RA RE Codes), the reentry code for Soldiers requiring a waiver was "3." 8. The applicant requests the removal of documents from his OMPF. a. According to AR 600-37 (Unfavorable Information), paragraph 7-2a (Policies and Standards – Appeals for Removal of OMPF Entries), then in effect, once proper authority placed an official document in an OMPF, the regulation presumed the document was administratively correct and filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rested with the individual concerned to provide evidence of a clear and convincing nature that showed the document was untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely alleged an injustice or error without supporting evidence were unacceptable and not considered. b. For historical purposes, the Army has an interest in maintaining the accuracy of its records, and the data and information contained in those records should reflect the conditions and circumstances that existed at the time of their creation. 9. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. KURTA FACTORS:? Memorandum, Office of the Under Secretary of Defense, published 25 August 2017 states, the BCM/NRs will consider Veterans petitions for discharge relief when the application is based on whole or in part on matters relating to mental health conditions, including PTSD, TBI, Sexual Assault, or harassment. The Veteran's testimony alone, oral or written, may establish the existence of a condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. The Board is to determine requested relief is warranted, unless the Board makes an affirmative determination, by a preponderance of evidence, that the mental health condition(s) and/or experience(s) does not excuse or mitigate the discharge. a. Did the applicant have a condition(s) or experience(s) that may excuse or mitigate the discharge?? Answer provided via review? ? ? b. Did the condition(s) exist, or experience(s) occur during military service??? Answer provided via review? ? c. Does the condition(s) or experience(s) excuse or mitigate the discharge??? Answer provided via review? ? ? d. Does the condition(s) or experience(s) outweigh the discharge? See "BOARD DISCUSSION" of this Record of Proceedings.???? BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not 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 found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board agreed the applicant’s narrative reason and separation code was not in error or unjust. The Board found the applicant’s 30 years of post-service accomplishment since his discharge noteworthy. However, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 2. This board is not an investigative body. The Board determined despite the absence of the applicant’s separation records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of a discharge upgrade. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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 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 (AR) 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when a Soldier's subsequent honest and faithful service over a greater period served to outweigh any disqualifying entries. It was the pattern of behavior, and not the isolated instance, that commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Section II (Secretarial Authority), chapter 5 stated the separation of Soldiers for the convenience of the Government was the prerogative of the Secretary of the Army. Except as delegated by this regulation or by special Department of the Army directives, only the Secretary of the Army's authority could accomplish a separation for the convenience of the Government, following his/her determination that the separation was in the best interests of the Army. d. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion and after having access to counsel. The regulation stated the Soldier should receive a reasonable amount of time (not less than 72 hours) to consult with counsel prior to making his/her decision. Once the decision was made, the Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. In addition, the Soldier could submit statements in his/her own behalf for the separation authority's consideration prior to a decision on approval and character of service. 3. The Manual for Courts-Martial, United States, 1984, Appendix 12 (Maximum Punishment Chart) showed the maximum punishments for violations of UCMJ Article 112a (Wrongful Use and Possession of a Controlled Substance) included punitive discharges. 4. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-1e (Reductions) stated separation authorities were required to reduce Soldiers to the lowest enlisted grade when they were being separated per an approved under other than honorable conditions discharge. 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. AR 635-5 (Separation Documents), in effect at the time, required DD Form 214 preparers were required to enter "NA" for USAR members released from active duty for training. a. For members discharged for cause, the preparers were to enter the appropriate reenlistment eligibility code, as identified in Chapters 1 (General) and 2 (Qualification for Immediate Reenlistment), and Appendix D (Reenlistment Eligibility Codes), of AR 601- 280 (Army Reenlistment Program). b. During the applicant's era of service, the source of reentry codes changed from AR 601-280 to AR 601-210 (Regular Army and Army Reserve Enlistment Program). Chapter 4 (Waivable and Nonwaivable Enlistment Criteria) stated, in Table 4-1 (Waivable Moral and Administrative Disqualifications), Line AC, that Soldiers last separated "for the good of the service" (i.e. chapter 10, AR 635-200) required a waiver to reenter the Army. According to Table 3-6 (Armed Forces RE Codes, RA RE Codes), the reentry code for Soldiers requiring a waiver was "3." 7. AR 600-37 (Unfavorable Information), paragraph 7-2a (Policies and Standards – Appeals for Removal of OMPF Entries), then in effect, stated once proper authority placed an official document in an OMPF, the regulation presumed the document was administratively correct and filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rested with the individual concerned to provide evidence of a clear and convincing nature that showed the document was untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely alleged an injustice or error without supporting evidence were unacceptable and not considered. 8. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016882 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1