ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 
IN THE CASE OF:  
BOARD DATE: 16 July 2021 DOCKET NUMBER: AR20210008975 
APPLICANTS REQUEST: . an upgrade of his general under honorable conditions discharge . personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) . DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 10 October 1996 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 at the time of his discharge, he was young and was not allowed to contest the discharge. He was not told nor was he allowed legal counsel. He requested a discharge and the commander downgraded his discharge without his knowledge. His character of discharge is affecting his employment and access to benefits. 

3. 
On 17 September 1991, the applicant enlisted in the Regular Army for a term of 6 years, at the age of 18 years old. 

4. 
After completing initial entry training and a stateside assignment at Fort Hood, TX, on 20 January 1994, the applicant was assigned overseas to Germany in the military occupational specialty 52C (Utilities Equipment Repairer). 

5. 
The applicant was counseled on eight occasions between 16 November 1994 and 17 May 1996 for, but not limited to: 


. possession of unregistered firearm, ammo, and knife in the single Soldiers' 
quarters and unauthorized lodging in the quarters 
. missing formations 
. driving privately owned vehicle when insurance had been cancelled 
. being drunk on duty 
. possible separation and type of separation if his misconduct continued 
6. The applicant accepted nonjudicial punishment (NJP) on: 
a. 
16 November 1994, for failing to obey a lawful general regulation by wrongfully possessing an unregistered firearm, ammo, and knife. His punishment consisted of 14 days extra duty and 7 days restriction. 

b. 
23 February 1996 for failing to go at the time prescribed to his appointed place of duty and wrongfully reporting to duty with a blood alcohol content of .61. His punishment consisted of reduction to the rank/grade of Private First Class/E-3 (suspended until 21 August 1996, forfeiture of $270.00 pay, 14 days' extra duty, and 14 days' restriction. On 22 April 1996, the punishment to reduction was vacated because the applicant failed to go at the time prescribed to his appointed place of duty. 

c. 
11 June 1996 for failing to go at the time prescribed to his appointed place of duty and for willfully disobeying a lawful order from a noncommissioned officer (NCO). His punishment consisted of reduction to Private E-2, 14 days' extra duty, and 14 days' restriction. 


7. 
In preparation for his pending separation, the applicant underwent a medical examination and a mental status evaluation; both cleared him for separation. 

8. 
On 19 September 1996, the applicant’s immediate commander notified him he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, unsatisfactory performance and advised him of his available rights. The reason for his proposed action was the applicant received two NJPs and his suspended punishment to reduction, imposed by NJP, was vacated. The commander indicated he was recommending the applicant receive a general discharge. 

9. 
The applicant acknowledged receipt of the proposed action initiated against him and he had been advised by his consulting counsel of the contemplated action to separate him under AR 635-200, chapter 13 for unsatisfactory performance. He understood if the recommendation for separation was approved he could receive an honorable or general under honorable conditions discharge. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He elected to submit statements on his own behalf. He submitted: 


a. 
Personal statement in which he stated he provided statements from his supervisors, his awards, and medical documentation from the psychiatric ward for treatment of a sleep disorder to show why he should receive an honorable discharge instead of a general discharge. 

b. 
Statements from his supervisors attesting that his duty performance was outstanding and he completed all assigned tasks. He received high commendations due to his job proficiency and assisted the company receive a GO during a battalion training exercise. 

c. 
Medical documents which show he was treated for a complaint of having difficulty sleeping. He indicated he would often fall asleep at work and had difficulty sleeping at night. He had more than 20 missed formations due to oversleeping. He received a provisional diagnosis of insomnia, disturbed sleep/wake rhythm, and another condition (diagnosis illegible). The psychiatrist discussed possible referral to the sleep lab in the pulmonary clinic. 


d. Various Awards: 
(1) 
The Good Conduct Medal for exemplary, efficiency and fidelity in active federal military service from 17 September 1991 to 16 September 1994 

(2) 
The Army Achievement Medal for exceptionally meritorious achievement while demonstrating a high degree of knowledge and professionalism through his participation in the deployment of aircraft for Operation Intrinsic Action from 31 July 1992 to 20 August 1992. 

(3) 
The Army Achievement Medal for exceptionally meritorious service as Utility Equipment Repairman while assigned to the 647th Maintenance Company. His high degree of professionalism in the performance of his assigned duties ensured high standards of dependability and overall job proficiency from 1 August 1992 to 31 December 1993. 

(4) 
Citation to Accompany the Award of the Joint Service Achievement Medal for exceptionally meritorious achievement as a Utilities Equipment Repairer/Mechanic in Zagreb, Croatia from 19 August 1995 to 15 December 1995. His demonstrated superlative leadership, managerial skills, and high standards of performance were instrumental in the Joint Task exceeding all operational goals and commitments, including the humanitarian delivery of food and medical supplies to refugees in war torn Bosnia-Herzegovina. 

(5) 
The United Nations Medal for Service with the United Nations Protection Force during the period 19 August 1995 to 31 January 1996, while assigned to the U.S. Army Joint Task Force, Operation Provide Promise (Forward) Camp Pleso, Zagreb, Croatia. 

(6) 
United Nations Peace Forces, U.S. Joint Task Force Provide Promise Certificate for distinguished service and dedication to duty in support of the UN Peace Forces operating in the former republic of Yugoslavia from 19 August 1995 to 31 January 1996. 

(7) 
Certificate of Appreciation for outstanding volunteer support of the Morale, Welfare, and Recreation Program at Camp Pleso, Zagreb, Croatia. 


10. 
On 30 September 1996, the Office of the Staff Judge Advocate reviewed the case and determined it was legally sufficient. On 2 October 1996, the appropriate separation authority approved the recommendation for separation; waived the rehabilitative transfer requirements, and directed that be issued a General Discharge Certificate. 

11. 
On 10 October 1996, the applicant was discharged accordingly. He completed 5 years and 24 days of his 6-year contractual obligation. He served 2 years, 8 months, and 24 days of Foreign Service. His DD Form 214 shows: 


. He was awarded or authorized: 
o 
Army Achievement (2nd Award) 

o 
Good Conduct Medal 

o 
National Defense Service Medal 

o 
Army Service Ribbon 

o 
Overseas Service Ribbon 

o 
United Nations Medal 

o 
Joint Service Achievement Medal 

o 
M-16 Rifle Marksman Marksmanship Qualification Medal 


. Character of Service: Under Honorable Conditions (General) . Signature of Member Being Separated:  Endorsed with the applicant's signature . Member Requests Copy 4:  Endorsed by the applicant's initials 
12. The applicant requests an upgrade and personal appearance before the Board. The applicant states he was young and was not allowed to contest the discharge. He was not told nor was he allowed legal counsel. He requested a discharge and the commander downgraded his discharge without his knowledge. 
a. His record shows he enlisted at the age of 18 years old and he accepted three NJPs. He completed 5 years and 24 days of his 6-year contractual obligation. In regards to his contention, he was not allowed to contest the discharge, he was denied the opportunity to consult with counsel, and his commander downgraded his discharge without his knowledge: 
(1) 
The separation packet shows the commander notified the applicant that he was recommending a general discharge. The applicant acknowledged receipt of the proposed separation action against him. 

(2) 
The applicant signed his election of rights indicating he understood he may receive an honorable or general discharge and the impact of receiving a general discharge. He submitted statements as to support why he should receive an honorable discharge instead of a general. Prior to signing the form, he consulted with the senior defense counsel. 

(3) 
The case was reviewed by the Office of the Staff Judge Advocate and found to be legally sufficient. 

(4) 
The applicant endorsed his DD Form 214, which listed his discharge as "under honorable conditions (general)." 

b. 
Although the applicant did not contend he had any medical conditions, which contributed to his misconduct, his separation packet did show he submitted medical documents to show he had difficulty sleeping which may have impacted his ability to make formations and may have led to his discharge. He requested the command take his medical issues in consideration and issue him an honorable discharge instead of a general discharge. 

d. 
In regards to the applicant's request for a personal appearance, Army Regulation 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. 

e. 
AR 635-200, Chapter 13 was a separation for unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. Paragraph 1-18 required adequate counseling and rehabilitation measures before initiating action to separate a member for various reasons to include unsatisfactory performance. 


13. 
The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. 

14. 
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 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 10 October 1996 discharge characterized as under honorable conditions (general).  He states: 
“At the time I was young and was not allowed to contest the discharge.  I was not 
told nor was I allowed legal counsel at the time of discharge. I requested a discharge and the commander downgraded my discharge without my 
knowledge.” 
b. 
The Record of Proceedings details the applicant’s military service and the circumstances of the case.  His DD 214 shows he entered the regular Army on 17 September 1991 and was discharged on 10 October 1996 under the provisions in paragraph 13 of AR 635-200, Active Duty Enlisted Administrative Separations (26 June 1996): Separation for Unsatisfactory Performance. 

c. Counseling statements starting in 1994 show a variety of infractions to include: 

d. 
On 19 September 1996, his company commander notified him he was recommending that he be separated with an Under Honorable Conditions (General) characterization of service under chapter 13 AR 635-200: 


- Possession of an unregistered firearm, ammunition, and a knife in the Single  
Soldier Quarters with unauthorized lodging in the Single Soldiers Quarters  
while assigned family housing and receiving overseas housing allowance,  
separate rations, and basic allowance for quarters.  
- Driving a privately owned vehicle with canceled insurance  
- Being “drunk on duty” with a blood alcohol of 0.61  
- Several for failures to report  

The reasons for my proposed action are: You were counseled on several occasions for unsatisfactory performance. On 12 Feb 96, you received a Company Grade Article 15 for violating Article 86, UCMJ, failure to go at the time prescribed to you appointed place of duty and Article 92, UCMJ, violating a lawful 
general regulation … On 5 Jun 96, you received a Company Grade Article 15 for 
violating Article 86, UCMJ, failure to go at the time prescribed to you appointed place of duty and Article 91, UCMJ, willfully disobeying a lawful order. 
e. 
In his 19 September 1996 acknowledgement of the proposed separation action, the applicant acknowledged he had been advised by counsel and the recommendation was that he would receive a general under honorable conditions discharge if his commander’s recommendation was approved.  In his hand-written statement, he requested an honorable discharge, noting that “Medical documentation of treatment from psychiatric ward for treatment of a sleep disorder.” 

f. 
The applicant was seen by a licensed clinical social worker for sleep issues 30 July 1996 and was then evaluated by psychiatry on 29 August 1996 for a history of hypersomnolence.  Following his evaluation, the psychiatrist referred him to a sleep lab. If this evaluation did take place prior to his administrative discharge, the results are unknown. 


g. On his pre-separation Report on Medical History, the applicant noted that his 
health was “Pretty good” and that he was taking Percocet (a narcotic pain medication) 
and Antabuse (to treat alcohol abuse).  Diagnoses on his Report on Medical 
Examination were “Partial tear or right medical collateral ligament {knee}, Chronic low 
back pain, Antabuse medication for alcohol abuse, lipomatosis cyst on left lower 
quadrant of abdomen.” 
h. The applicant underwent a pre-separation mental status exam on 21 May 1996. The psychiatrist opined: 
“Clinical evaluation at this time indicates that this individual does not suffer from psychiatric disease, defect, or personality disorder.  This individual is psychiatrically cleared for any administrative action deemed appropriate by 
Command.” 
i. 
The recommendation for discharge was approved on 2 October 1996. 

j. 
There are no clinical encounters in AHLTA or JLV. 


k. 
There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge.  Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Even had he been diagnosed with a sleep disorder, it would only have mitigated the multiple failures to report. 

l. 
It is the opinion of the Agency Medical Advisor that neither an upgrade of his discharge nor a referral of his case to the DES is warranted. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. 
The Board also determined relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the reason for his separation.  The Board considered the applicant's 
the pattern of misconduct and the findings and recommendation of the medical advisor 
and found insufficient evidence of mitigation. The Board found insufficient evidence of post-service achievements or letters of reference to support a clemency determination.  Based on a preponderance of evidence, the Board determined there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
:XXX :XXX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 
1. 
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. 

2. 
Prior to closing the case, the Board noted the administrative note below from the analyst of record and recommended that change be completed to more accurately reflect the military service of the applicant. 


X 
CHAIRPERSON 
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): 
A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 October 1996, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): "SERVICE IN CROATIA 19950819 -19951215." 
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 Army Board for Correction of Military Records (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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 

3.  
AR 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. 


a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 
b. Chapter 13 established policy and prescribed procedures for separating members for unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. It stated commanders would separate a Soldier for unsatisfactory performance when: 
. it was clearly established that in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; 
. or the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale; 
. and it was likely that the Soldier would be a disruptive influence in present or future duty assignments; 
. and it was likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; 
. and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, was unlikely; 
. and the member meets retention medical standards 
c.  Paragraph 1-18 (Counseling and Rehabilitative Requirements) stated Commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member for various reasons to include Chapter 13, unsatisfactory performance. 
(1)  Counseling will be conducted per AR 350-21 (Instruction in Benefits of an Honorable Discharge). It will be comprehensive and will include at least the following: 
. reason for counseling . that separation action may be initiated if the behavior continues . the type of discharge that could result from the possible separation action 
and the effect of each type 
. each counseling session required by this paragraph must be recorded in writing; DA Form 4856-R (General Counseling Form) normally should be used for this purpose 
(2)  Members will be reassigned at least once, with at least 2 months of duty in each unit. Reassignment should be between at least battalion-size units. The requirement for a rehabilitative transfer may be waived by the separation authority. 
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 


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