ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160014753


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

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)

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 his characterization of service is unjust, because his honorable service substantially outweighs his performance deficiencies.  He was a combat engineer and he served in the first Gulf War, maintaining and clearing mine positions along the Saudi border.  He was later discharged for Army Physical Fitness Test failure and weight control failure.  He never had any disciplinary problems or performance issues other than his weight.  He believes his combat service with no misconduct or work performance issues merits an honorable discharge.  It is in the interest of justice to have combat service appropriately recognized with an honorable character of service. 

3.  On 6 July 1989, the applicant enlisted in the Regular Army for4 years.  He held military occupational specialty (MOS) 12B (Combat Engineer).   A review of his records shows he deployed to Saudi Arabia from on or about 18 December 1990 through 20 April 1991.

4.  On 15 August 1991 the applicant was barred from reenlistment, due to exceeding his maximum authorized weight and body fat content.

5.  On 16 September 1991, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation (AR) 
40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings deemed appropriate by his chain of command.  He was psychiatrically cleared for any administrative action deemed necessary by his command. 

6.  His records provide a separation packet that shows; 

      a.  On 15 October 1991, his commander notified him he was initiating action to discharge him under the provisions of chapter 13, AR 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance with a general discharge under honorable conditions or an honorable discharge.  The commander advised him of his available rights and stated a flag was placed against the applicant on 14 August 1991.  

     b.  On 15 October 1991, the applicant waived his right to submit statements in his behalf and acknowledged his available rights. 

     c.  The applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service under the provisions of chapter 13, 
AR 635-200, due unsatisfactory performance. 

      d.  On 21 October 1991, the appropriate authority waived the requirement for a rehabilitative transfer and directed that he be issued a general discharge under honorable conditions. 

7.  On 15 November 1991, he was discharged accordingly.  He completed 2 years, 4 months, and 10 days of active service that was characterized as under honorable conditions.  His DD Form 214 shows he was awarded or authorized the: 

* Army Service Ribbon
* National Defense Service Medal
* Southwest Asia Service Medal with two Bronze Service Stars

8.  The applicant states his characterization of service is unjust, because his honorable service substantially outweighs his performance deficiencies.  

9.  AR 635-200 states separation of individuals due to unsatisfactory performance when, in the commander's judgment 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 was characterized as honorable or under honorable conditions. 

10.  In reaching its determination, the Board can consider his petition and his service record in accordance with the published equity, injustice, or clemency guidance. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was warranted.  One possible outcome discussed was that the applicant failed to show an injustice or error which warranted correction.  However, after reviewing the totality of the circumstances, and especially the justification for discharge in relation to the overall performance of the applicant during his military service, the Board found that full relief was warranted.  
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 the applicant a DD Form 214 showing his characterization of service 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 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.  AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 

     a.  Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the 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
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely

     b.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. 

     c.  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.  

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 based on 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. 



ABCMR Record of Proceedings (cont)	 AR20160014753


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