IN THE CASE OF: 

		BOARD DATE: 7 March 2023

		DOCKET NUMBER: AR20220008520


APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) 
discharge from the U. S. Army Reserve (USAR) be upgraded. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

DD Form 149 (Application for Correction of Military Record) - on-line application

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
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 his military records are in error or unjust because on 
16 December 2005 he was in a gas explosion at his job, and he was still recovering 
when he was discharged. Captain had all the documents from the University of North 
Carolina, Chapel Hill Burn Center, to explain why he wasn't at training so he doesn't 
understand how after serving 11 years his rank could be taken away and discharged. 
He made a full recovery that very same year, but his pleas have fallen on deaf ears. He 
served with integrity and honor, all he wants is what is due to him and his family.

3.  The applicant had prior honorable active-duty service from 9 November 1994 until he 
received a hardship discharge on 19 April 1996. He was transferred to the USAR and 
served until 25 February 2002, when he was honorably discharged.

4.  The applicant enlisted in USAR on 26 March 2004, for 4 years in the rank/grade of 
specialist/E-4.

5.  The applicant’s record is void of separation processing documents or other related 
USAR documents.

6.  Orders 06-194-00110, issued by Headquarters, 81st Regional Readiness Command, 
Birmingham, AL, on 13 July 2006, show the applicant was reduced in rank from E-4 to 
private/E-1, effective 13 July 2006. He was discharged from the USAR, under the 
provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – 
Enlisted Administrative Separations), paragraph 7-12(a), effective 13 July 2006. His 
service was characterized as UOTHC.

7.  The applicant's medical records are not available for review and he did not provide 
medical documents for consideration. 

8.  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.

9.  MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  

    a.  The applicant is applying to the ABCMR requesting an upgrade of his 13 July 
2006 discharge characterized as under other than honorable conditions and a 
restoration of his rank to specialist (SPC – E04).  He states:

“My military records are in error or unjust because on Dec 16, 2005, I was in a 
gas explosion due to my job and at the time of discharge I was recovering.  had 
all the documents from UNC Chapel Hill Burn Center to explain why I wasn't at 
training so I don't understand after serving 11 years for my country that my rank 
could be taking away and kicked out.  I made a full recovery that very same year 
but my plea fell on deaf ears.”
    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  Orders published by the 81st Regional Support Command 
(RSC) show the applicant was reduced in grade form SPC to private (PV1 – E01) under 
provisions provided in paragraph 7-12a of AR 140-158, Enlisted Personnel 
Classification, Promotion, and Reduction (15 November 2005): Approved for discharge 
from service under other than honorable conditions; and discharged from the USAR 
under provisions in AR 135-178, Enlisted Administrative Separations (27 July 2004).  
No chapter, paragraph, or narrative reason is given for his discharge.  Both actions 
were effective 13 July 2006.

    c.  Neither the applicant’s separation packet nor documentation addressing his 
reduction in rank or involuntary separation were submitted with the application or 
uploaded into iPERMS.

    d.  No medical documentation was submitted with the application and there are no 
encounters in AHLTA or documents in MEDCHART. Review of the applicant’s records 
in JLV shows he has one VA service-connected 10% disability rating for tinnitus 
originally effective 30 October 2017.  It also shows he has been diagnosed with 
nonservice-connected depression.

    e.  There is a presumption of regularity in the conduct of governmental affairs which 
is applied in any review of governmental action.  It holds that any action taken by the 
government is legal until evidence is provided that shows that it is not legal.  Unless 
there is substantial credible evidence to rebut the presumption, the governmental action 
is presumed to have been administered correctly.  

    f.  The applicant bears the burden of overcoming this presumption through the 
presentation of substantial and credible evidence to support his issue.  There is no 
evidence in the record nor has the applicant produced any evidence to support the 
contention that he was unjustly reduced in grade and/or discharged from the Army.  The 
applicant's statements alone do not overcome the government's presumption of 
regularity.  In the absence of documentation, it is the opinion of the ARBA medical 
advisor the applicant’s requests for an upgrade of his 13 July 2006 discharge 
characterized as under other than honorable conditions and a restoration of his rank to 
specialist (SPC – E04) should both be denied.

BOARD DISCUSSION:

The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, and published DoD guidance for liberal consideration of 
discharge upgrade requests. The Board considered the applicant's statement, the 
applicant's record of service, the frequency and nature of the applicant's misconduct 
and the reason for separation. The applicant’s record is void of the specific facts and 
circumstances surrounding his discharge processing. However, it does contain orders 
issued reducing him to private/E-1 and separating him from the USAR, under the 
provisions of AR 135-178 in July 2006 with an under other than honorable conditions 
discharge. The applicant bears the burden of overcoming the presumption of regularity 
by presentation evidence to support his issue. There is no evidence in the record nor 
has the applicant produced any evidence to support the contention that he was unjustly 
reduced in grade and/or discharged from the Army. The applicant does not provide any 
evidence of post-service achievements or letters of reference to support a clemency 
determination. In the absence of documentation, and 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

: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.

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 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Title 10, U.S. Code, Section 1556 provides the Secretary of the Army shall ensure 
that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) 
is provided a copy of all correspondence and communications, including summaries of 
verbal communications, with any agencies or persons external to agency or board, or a 
member of the staff of the agency or Board, that directly pertains to or has material 
effect on the applicant's case, except as authorized by statute.

3.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records (ABCMR).  
Paragraph 2-9 states 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.

4.  Army Regulation 135-178 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 and USAR 
enlisted Soldiers for a variety of reasons.  

   a.  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. 
   
   b.  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.

   c.  An under other than honorable conditions may be issued only when discharge is 
for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or 
security reasons; when the reason for discharge is based upon a pattern of behavior, or 
one or more acts or omissions, that constitutes a significant departure from the conduct 
expected of Soldiers. No Soldier will be discharged in accordance with this regulation, 
with service characterized as under other than honorable conditions, unless he or she is 
afforded the right to present his or her case before an administrative separation board. 
The Soldier will be afforded the advice and assistance of counsel. Such discharge must 
be supported by approved board findings, and an approved board recommendation for 
discharge under other than honorable conditions.
   
5.  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, regarding equity, injustice, or clemency determinations. Clemency 
generally refers to relief specifically granted from a criminal sentence. Boards for 
Correction of Military/Naval Records 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.)	AR20220008520


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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