IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230003636 APPLICANT REQUESTS: an upgrade of her discharge from the U.S. Army Reserve (USAR) from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 24 January 2023 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 15 December 2002 * Orders 05-203-00070, 22 July 2005 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, in effect, after 4 years of service and a deployment, her Command informed her of separation due to being a sole parent and she was told to no longer attend drill. She was very young and naive, and trying to find childcare became a struggle. She received a memorandum stating she was discharged under other than honorable conditions to which she states at no point did the Command ever disclose that she would receive anything other than an honorable discharge. She was unaware a Veteran could apply for upgrade to their discharge and that is why she is requesting this, in order to access the education benefits earned while serving as a deployed Reservist during Operation Enduring Freedom. She has to disclose to prospective employers a discharge status of other than honorable, that she believes to be erroneous. 3. The applicant enlisted in the USAR for a period of 8 Years on 27 October 2000. 4. A DD Form 214, shows she was ordered to active duty from 14 January 2002 to 15 December 2002, in support of Operation Enduring Freedom and Noble Eagle. She served a total of 11 months and 2 days of net active service for this period. She received an Army Achievement Medal. 5. The applicant’s Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding her USAR discharge. 6. Orders 05-203-00052, issued by Headquarters, 89th Regional Readiness Command, Wichita, Kansas, dated 22 July 2005, reduced the applicant from the rank of specialist (SPC) to private (PV1) under the authority of Army Regulation (AR) 140-158 (Enlisted Personnel Classification, Promotion and Reduction), paragraph 7-12 (d-g). 7. Orders 05-203-00070, issued by Headquarters, 89th Regional Readiness Command, Wichita, Kansas, dated 22 July 2005, discharged the applicant from the USAR, under the provisions of AR 135-178 (Enlisted Administrative Separations), with an under other than honorable conditions characterization of service. 8. AR 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 (ARNGUS) and USAR enlisted Soldier's for a variety of reasons. 9. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 her 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 applicant’s separation to weigh a clemency determination. The Board noted the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to her honorable conduct that might have mitigated the discharge characterization. 2. 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. 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. Army Regulation (AR) 135-178 sets forth the basic authority for the separation of enlisted Reserve Component personnel. a. Paragraph 1-17, provides that an uncharacterized type of discharge is appropriate when a Soldier separates as entry level status, order of release from the custody and control of the Army for reason of void enlistment or induction, and separation by being dropped from the rolls of the Army, b. 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. c. 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. 3. AR 140-158, Chapter 7 Outlines policy and procedures governing grade reductions and restoration of USAR Soldiers. Paragraph 7-12 provides that a discharge from service of under other than honorable conditions, when the appropriate authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to private. Board action is not required for this reduction. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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, 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) AR20230003636 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1