ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160017697


APPLICANT REQUESTS:  In effect, an upgrade of his under honorable conditions (general) discharge and a change in the narrative reason for separation from unsatisfactory performance to hardship.

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)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 17 October 1991
* a character reference letter, dated 31 December 2008
* two self-authored letters, dated 3 October 2016

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:

   a. After serving for twenty three months and while stationed in Germany, his wife’s family endured multiple deaths.  He was unable to go home to support his wife.  He lost his grandmother who raised him but he still wasn’t afforded the opportunity to go home.  It was suggested by a sergeant that he request a hardship discharge.  When the discharge process was started, he assumed it was for a hardship discharge because that’s what his platoon sergeant told him.  He was told since he didn’t complete his contract he would receive a general, under honorable conditions discharge but he could have it upgraded to an honorable discharge after two years.

   b. His wife’s grandfather and his grandmother passed away in September 1990, his wife’s sister and uncle died in an automobile accident in December 1990, and his wife’s dad passed away in June 1991.  He wasn’t able to go home and attend any of the funerals or to support his wife and was encouraged by his platoon sergeant to request a hardship discharge.  He was discharged on 17 October 1991.

   c. He did not submit an application for upgrade sooner because he was not aware that his current discharge type would prevent him from receiving Department of Veterans Affairs (VA) benefits.  He is now trying to guy a home and would like to be able to use the VA home loan guarantee.  He served honorably with no disciplinary actions and feels he should be afforded the opportunity to use veterans benefits.

3.  The applicant enlisted in the Regular Army on 21 November 1989.

4.  The applicant's commander notified him on 23 September 1991 that he was initiating actions to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance prior to the expiration of his term of service.  His commander stated his proposed actions were based on the applicant having no initiative, showing no self-motivation and below average duty performance.  His commander informed him that he would recommend he receive a general discharge.

5.  The applicant consulted with counsel on 23 September 1991 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He was further advised of his right to:  

* be represented by counsel
* submit statements in his own behalf [he did not make any statements on 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 

6.  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, chapter 13, based on the applicant having no initiative, showing no self-motivation and below average duty performance.

7.  Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 30 September 1991, by reason of unsatisfactory performance, and directed that his service be characterized as general, under honorable conditions.

8.  The applicant was discharged on 17 October 1991.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  His DD Form 214 confirms his service was characterized as under honorable conditions (general).  Item 12c (Net Active Service This Period) shows he completed 1 year, 10 months, and 27 days of creditable service.

9.  There is no evidence in the available records that shows the applicant requested a hardship discharge prior to his discharge.

10.  The applicant provides a character reference letter from a Pastor of the Mount Olive Baptist Church, showing:

* he has loving and distinctive traits, and is very thoughtful
* he likes working on cars in his down time, and minds his own business
* has never been in trouble with law officials, and does not drink or smoke
* has excellent work habits and a four year child
* enjoys challenges and love to help his fellow man
* has characteristics of love, kindness, and patience 
* works well with others to get the job done, and the kind of person you would want on your team
* will not quit on a job, and believes in finishing what he starts
* he is mentally and emotionally stable

11.  The Board should consider the applicant's character statement and his request in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence to change the characterization of service.  Based upon the applicant receiving an under honorable conditions (general) discharge, the Board concluded there was no error or injustice which would warrant them making a change.  


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, 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 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JHJ" is "Unsatisfactory Performance" and the regulatory authority is Army Regulation 635-200, chapter 13.

3.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative 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 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

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

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)	AR20160017697


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