IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20230004197 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 21 pages of civilian medical records with dates ranging from January 2022 to December 2022 * Department of Motor Vehicles Transcript of Driver History * memorandum pertaining to his security clearance, dated 30 December 2022 * U.S. Army Reserve (USAR) separation proceedings 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: a. He is requesting the upgrade of his discharge in order to obtain benefits/assistance to deal with injuries sustained during entry level training and deployment in 2004. He contends that during entry level training, he suffered a back injury on the hand grenade training field, and he was transported by ambulance to the emergency room at Fort Leonard Wood, MO. He was part of the morning detail to get the course ready. During setup, he was standing on the back of a military truck, and someone had placed one of the two gate doors resting outside the other gate door in the back. b. Another Soldier was standing below, and he noticed the freestanding gate door falling, so he tried to stop it from falling. The door was heavy, but he stopped it long enough for the Soldier to get out of the way. Unfortunately, it resulted in him getting pulled off the back of the truck by the heavy freestanding door and he ended up landing on the ground on his back. He also suffered a head injury during a two-week deployment to Haiti during a joint task force humanitarian mission, where he was treated by the Argentine United Nations peacekeepers. Since then, he has been dealing with debilitating back pain and sporadic debilitating migraines. He did not know he had the option to upgrade his discharge status in order to receive assistance through the Department of Veterans Affairs. 3. The applicant enlisted in the (USAR) on 22 November 2002. His DD Form 214 (Certificate of Release or Discharge from Active) shows he completed initial active duty for training which he attended at Fort Leonard Wood, MO from 21 August 2003 to 20 February 2004. 4. An Affidavit of Service by Mail shows that on 21 November 2005, the applicant's unit administrator sent him by certified mail a Notification of Separation Proceedings under the provisions of Army Regulation 135-178 (Army National Guard (ARNG) and Army Reserve Enlisted Administrative Separations), chapter 13 (Unsatisfactory Participation in the Ready Reserve). A certified mail receipt shows the correspondence was received by the applicant on 23 November 2005. 5. The Notification of Separation of Proceedings shows the applicant's commander informed him that he was initiating action to separate him from the USAR for unsatisfactory participation with an under other than honorable conditions characterization of service. The commander stated he was taking this action because the applicant had accrued 16 unauthorized absences from schedule training assemblies in a one-year period. The notification also informed the applicant that the commander was suspending the separation action for 45 days to give him the opportunity to exercise his rights as follows: * to consult with military counsel at no expense or civilian counsel at his own expense * to obtain copies of documents that would be sent to the separation authority * to request a hearing before an administrative separation board * to present written statements on his own behalf * to waive his rights 6. The applicant was also informed that unless an extension was granted, failure to deliver or postmark a completed endorsement within 30 days of the date of receipt of the notification constituted a waiver of his rights. 7. On 23 January 2006, the applicant's commander formally recommended his separation under the provisions of Army Regulation 135-178, chapter 13. The commander indicated the following: * the applicant received the notification but failed to respond by the suspense date * the applicant accumulated 16 unexcused absences with a one-year period * the applicant's previous military service, if any, including tours of active duty or active duty for training, included basic combat and advanced individual training (note: no mention of service in Haiti) 8. On 30 January 2006 and 28 February 2007, respectively, the applicant's battalion and brigade commander's recommended approval of the separation action with an under other than honorable conditions characterization of service. 9. On 4 November 2007, the separation authority approved the proposed separation action and directed the issuance of an other than honorable conditions characterization of service. 10. Orders 07-310-00010, issued by Headquarters, Headquarters, 99th Regional Readiness Command, Coraopolis, PA, on 6 November 2007 directed the applicant's discharge from the USAR effective 6 November 2007, with an under other than honorable conditions character of service. 11. The applicant provided 21-pages of civilian medical records with dates ranging from January 2022 to December 2022 showing he was receiving treatment for low back pain. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 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 frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. 2. A majority of the Board found the applicant’s character of service to be too harsh considering the type of misconduct that led to his discharge. A majority of the Board determined a discharge under honorable conditions (general) more appropriately characterizes his service. 3. The member in the minority found insufficient evidence of in-service mitigating factors and found the applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of the evidence, the member in the minority determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Headquarters, 99th Regional Readiness Command, Orders 07-310-00010, issued on 6 November 2007, to show the character of service as under honorable conditions (general). 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 135-91 (ARNG and USAR Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states a Soldier is an unsatisfactory participant when 9 or more unexcused absences from scheduled training occurs during a 1-year period. Unless an absence is authorized, a Soldier failing to attend a scheduled drill will be charged with an unexcused absence. 3. Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG and USAR. Chapter 13 provides that a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: a. The Soldier is an unsatisfactory participant as prescribed by Army Regulation 135-91. b. Attempts to have the Soldier respond or comply with orders or correspondence have resulted in: (1) The Soldier’s refusal to comply with orders or correspondence. (2) A notice sent by certified mail was refused, unclaimed, or otherwise undeliverable. c. Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted. 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. In such cases, separation for unsatisfactory participation with an honorable characterization will be approved by the separation authority. As an exception, the separation authority will approve separation with service characterized as honorable when an administrative separation board has recommended such characterization. 4. Army Regulation 135-178, paragraph 2-9 of the regulation in effect at the time states: 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. 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. b. 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 aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. 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. c. 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. 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. As an exception, a discharge with service characterized as under other than honorable conditions may be issued without board action if the Soldier waives their right to board action. 5. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004197 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1