IN THE CASE OF:  

BOARD DATE:  25 September 2020

DOCKET NUMBER:  AR20200001632


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 19 November 2019

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), 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 he would like to have his discharge upgraded for employment 
and educational purposes.  The general discharge gives a negative implication to others 
when applying for certain positions and agencies.

3.  The applicant enlisted in the Regular Army on 31 August 1988.

4.  The applicant accepted non-judicial punishment on 13 August 1990, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for two 
specifications of failure to go at the time prescribed to his appointed place of duty, on or 
about 1 August 1990 and on or about 20 October 1990.

5.  The applicant’s check-cashing privileges were suspended on 20 August 1990 for 
dishonored checks written between 2 May and 14 May 1990.

6.  The applicant underwent a mental status evaluation on 23 January 1991, which 
found him mentally responsible and able to participate in board proceedings.

7.  The applicant's immediate commander notified the applicant on 22 March 1991 of his 
intent to initiate separation actions against him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for his continued 
absences from formations, numerous returned checks, and letters of indebtedness.

8.  After consulting with counsel, the applicant acknowledged receipt of the notification 
memorandum and the rights available to him.  He further acknowledged that he may 
encounter substantial prejudice in civilian life if he received a general discharge.  He 
elected to submit a statement in his own behalf; however, his statement is not available 
for review.

9.  The applicant's commander formally recommended his separation from service 
under the provisions of Army Regulation 635-200, Chapter 13.  The separation authority 
approved the recommended discharge on 9 April 1991 and directed that the applicant 
be issued an under honorable conditions (general) discharge.

10.  The applicant was discharged on 3 May 1991.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory 
performance.  His service was characterized as under honorable conditions (general).

11.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade 
of his discharge.  The ADRB determined he was properly and equitably discharged and 
denied his request on 18 October 1994.

12.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

1.  The Board carefully considered the applicant's request, 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 sufficient evidence to support a recommendation for 
relief in this case.  The majority noted the applicant's misconduct was not of a violent 
nature and, in light of the Department of Defense guidance, determined the applicant's 
character of service should be upgraded to honorable.  

3.  The member in the minority found insufficient evidence of in-service mitigating 
factors and noted the applicant provided no evidence of post-service achievements or 
letters of reference in support of a clemency determination. Based on a preponderance 
of evidence, the member in the minority 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

: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 reissuing his DD Form 
214 to show his service was characterized as 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.




REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three 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 635-200 sets forth the requirements and procedures for the 
separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor 
and entitles the recipient to benefits provided by law.  The honorable characterization is 
appropriate when the quality of the member'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.  Chapter 13 provides for separation due to unsatisfactory performance when in 
the commander’s judgment the individual will not become a satisfactory Soldier; 
retention will have an adverse impact on military discipline, good order and morale; the 
service member will be a disruptive influence in the future; the basis for separation will 
continue or recur; and/or the ability of the service member to perform effectively in the 
future, including potential for advancement or leadership, is unlikely.  Service of Soldiers 
separated because of unsatisfactory performance under this regulation will be 
characterized as honorable or under honorable conditions.

3.  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)	 AR20200001632

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20200001632


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ABCMR Record of Proceedings (cont)	AR20200001632


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