ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  6 July 2021 DOCKET NUMBER:  AR20210008977 


APPLICANT REQUESTS:  In effect, her 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 Provisionsof Title 10, U.S. Code, Section 1552), dated 4 November 2020

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 21 October 1985 (Member-1 and Member-4 copies)



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states in effect, her discharge was due to be upgraded but her localDepartment of Veterans Affairs (VA) representative refused to help her so she leftwithout dispute.  She was very young (19 years old) when she joined the military andwas not clear in some areas.  She is having difficulties obtaining employment becausethe notation on her DD Form 214 is negative and prejudices hiring.  She was a goodSoldier and requested a transfer on numerous occasions prior to requesting adischarge.

3.The applicant enlisted in the Regular Army on 5 February 1985.  After completinginitial entry training, she was assigned to Fort Hood, Texas on or about 30 June 1985.

4.The applicant’s service record contains personal statements from her entire chain ofcommand and chaplain, as well as a counseling statement.  These documents showshe was a good garrison Soldier; however, it appears she had difficulty adapting to fieldtraining as she was afraid of the dark and could not or would not fire a weapon due tothe noise created by the weapon.  It was opined that she would not be an asset incombat.

5.The applicant underwent a physical examination and mental status evaluation on5 September 1985.  The examining medical officer determined she had the mentalcapacity to understand and participate in the proceedings; met the retentionrequirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3;and was found qualified for separation.

6.The applicant's commander notified the applicant on 27 September 1985 of his intentto initiate separation actions against her under the provisions of Army Regulation635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2, forunsatisfactory performance.  She acknowledged receipt the same day.

7.After consulting with counsel on 1 October 1985, the applicant acknowledged therights available to her and elected not to submit a statement in her own behalf.

8.The applicant's commander formally recommended the applicant's separation fromservice on 1 October 1985, prior to her expiration term of service (ETS) date, under theprovisions of Army Regulation 635-200, Chapter 13.

9.The separation authority approved the recommended discharge on 9 October 1985,and directed the issuance of an under honorable conditions (general) discharge.

10.The applicant was discharged on 21 October 1985.  Her DD Form 214 confirms shewas discharged under the provisions of Army Regulation 635-200, Chapter 13, byreason of unsatisfactory performance.  Her service was characterized as underhonorable conditions (general).

11.The Board should consider the applicant's request in accordance with the publishedequity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board considered the applicant's statement, her record of service and performance, the reason for her separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for her performance,  and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination.  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 

:XX :XX :XX 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, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200 sets forth the requirements and procedures for theadministrative discharge of enlisted personnel.  The version in effect at the timeprovided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 provided for separation due to unsatisfactory performance when inthe commander’s judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this Chapter would be characterized as honorable or under honorable conditions. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toService Discharge Review Boards and Service Boards for Correction of Military/NavalRecords 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 thecourt-martial forum.  However, the guidance applies to more than clemency from asentencing in a court-martial; it also applies to any other corrections, including changesin a discharge, which may be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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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