ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 April 2019

	DOCKET NUMBER:  AR20160016921


APPLICANT REQUESTS:  In effect, that his characterization of service be changed from uncharacterized to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 September 1990
* Social Security Administration letter
* Bachelors of Science degree certificate from Eastern Michigan University

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, in effect, that he would like his discharge upgraded so he may receive veterans' benefits.  He graduated from Eastern Michigan University in 1999 and worked at Daimler Chrysler until he retired in 2007.  He has lived a good life with no criminal record and has taken care of his family.  He is currently living off of Social Security disability.  He spent more than 215 days in the Army and he wants his discharge changed to honorable so that he may go to his grave in peace.  He loves the country and doesn’t want any stains on his record.  Since his discharge he has been a responsible member of society.

3.  The applicant enlisted in the Regular Army on 20 February 1990.  He completed basic training and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 11B (Infantryman).

4.  For his follow-on assignment, the applicant reported for duty at Charlie Company, 2nd Battalion, 27th Infantry Regiment, Fort Ord, CA in May 1990. 
5.  The applicant was counseled on at least 7 separate occasions between June 1990 and August 1990.  His DA Forms 4856 (General Counseling Form) show he was counseled for variety of reasons, including but not limited to, his failure to properly secure his room or equipment, failure to keep his chain of command informed, poor performance, alcohol abuse, failure to meet standards, lack of motivation, and disobeying the verbal orders of a noncommissioned officer.

6.  The applicant accepted nonjudicial punishment (NJP) on 14 August 1990, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a noncommissioned officer.

7.  The applicant's commander notified the applicant on 17 August 1990 that he was initiating actions to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11-2c, due to his developmental /personality characteristics that contributed to his difficulty to adjust to the demands of the military, which substantially reduced his potential for fully effective service.

8. The applicant acknowledged the commander's intent to separate him 17 August 1990.  He consulted with counsel and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 11, for entry level separation.  He was further advised of his right to:  

* be represented by counsel
* submit statements in his own behalf (he did not make any statements in his own behalf)
* obtain documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 

9.  The applicant's immediate commander recommended that he be separated from the Army prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, paragraph 11, by reason of entry level status performance and conduct.

10.  Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 30 August 1990, for entry level status performance and conduct, and directed that his service be uncharacterized.

11.  The applicant was discharged on 6 September 1990, under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-3a, by reason of entry level status performance and conduct.  His DD Form 214 shows he was credited with completing 6 months and 17 days (198 days) of creditable active military service, with no time lost.  
12.  The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  Based upon regulatory guidance stating discharges which are initiated within the first 180 days of military service are normally given a characterization service as “Uncharacterized,” the Board found no injustice or error which should be corrected 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	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, 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 Army Board for Correction of Military Records (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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3 describes the different types of characterization of service.  It states an uncharacterized separation is an entry-level separation.  A separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

	b.  Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons:  Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

4.  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.



ABCMR Record of Proceedings (cont)	 AR20160014514
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