ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 April 2019 DOCKET NUMBER: AR20160017930 APPLICANT REQUESTS: In effect, an upgrade of his character of service to honorable in lieu of under honorable conditions. 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 he successfully completed his first enlistment and was granted an honorable discharge. During his second enlistment he took advantage of early separation due to family and educational reasons and he received a general discharge, due to unsatisfactory performance. At no time did he receive disciplinary action or have any negative actions taken against him. 3. On 19 August 1988 the applicant enlisted in the Regular Army. A review of his records show he served two tours in Germany and one tour in Saudi Arabia from 18 December 1990 through 5 May 1991. His record provides: a. On 31 December 1992, the applicant was issued a memorandum for record where his chain of command notified him the vehicle he owned did not have insurance coverage and until proof of insurance was verified he was not allowed to operate the vehicle at any time. b. On 4 March 1993, he signed a payment agreement with United Telephone Company. He was indebted to the phone company in the sum of $226.83. c. He received seven general counseling's between September 1992 and March 1993, show he was counseled for various reasons to include but not limited to: * indebtedness to the 12th Transportation Company * failure to properly insure his privately owned vehicle (POV) * driving his POV without proper insurance * failure to pay for rings he purchased from “H&R” * failure to follow instructions * being late for formation * disobeying a lawful order * indebtedness to the telephone company * failure to pay just debts. 4. On 22 April 1993, the applicant declined a separation medical examination. 4. On 22 April 1993, his commander notified him he was initiating action to discharge him under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance prior to the expiration of his term of service with a general discharge. The applicant was advised of his available right and the reason for the proposed action was based on the applicant's indebtedness to a fellow Soldier (10 March 1993), indebtedness to United Telephone Company (11 September 1992), Indebtedness to H&R Sales 4 January 1993 [for the ring], GMAC (2 February 1993), indebtedness to United Telephone (4 March 1993). a. The applicant declined a separation medical examination and acknowledged his rights, indicated he had been advised by consulting counsel; and b. indicated in a statement written in his own behalf that as he reflected over his military career and job performance he believed he had been an above average Soldier striving to be all he could [be]. He had served 2 years in West Germany and 5 months in Southwest Asia in defense of Operation Desert Shield/Storm, he had been in a promotable status to sergeant, he had a prior period of honorable service, he had received the Army Commendation Medal with 1 Oak Leaf Cluster, Army Achievement Medal, National Defense Service Medal, Southwest Asia Service Medal with 3 bronze service stars, Overseas Service Ribbon, Army Service Ribbon, and Good Conduct Medal. He did not believe his financial problems effected his work performance. He blamed only himself for his financial problems. His financial problems had been resolved and or payment plans had been established. He asked that he be given an honorable discharge for the following reasons: * to maintain the Army College Fund, which was one reason that he enlisted * the Army College Fund was earned during his first enlistment and would assist in his future endeavors and help him better his life * the military had taught him to always strived for the next level 5. On 28 April 1993, the appropriate authority waived the requirement for a rehabilitative transfer and directed that he be issued a general discharge under honorable conditions 6. On 12 May 1993, he was discharged accordingly; his DD Form 214 shows he served 4 years, 8 months and 24 days of net active service this period and: a. Was awarded or authorized the: * Army Service Ribbon * Drivers Badge Bronze and Silver * Overseas Service Ribbon * Army Achievement Medal * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon * Southwest Asia Service Medal * Sharpshooter Marksmanship Qualification Badge Hand Grenade * Marksmanship Qualification Badge Rifle (M-16) * Army Good Conduct Medal * Army Commendation Medal (2nd Award) b. Item 18 (Remarks) the entry "Immediate reenlistment this period: 880819 – 910522. 7. He applied to the Army Discharge Review Boards (ADRB) for an upgrade of his discharge and his request was denied on 29 May 1996. 8. Army Regulation 635-200 states a Chapter 13 is applicable to those members, in the commander's judgment would not become a satisfactory Soldier. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. 9. The applicant stated during his second enlistment he took advantage of early separation due to family and educational reasons and he received a general discharge, due to unsatisfactory performance. His service record shows he was separated for a myriad of issues that were related to indebtedness; however, a. His first period of service was characterized as honorable and he received numerous awards and decorations. Corrections to his DD Form 214 to address his first period of honorable service are address in the Administrative Notes portion of this proceeding. b. In making its determination the Board can consider his petition, statement and service record in reaching a determination in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. Based upon the multiple UCMJ violations found within the military service record of the applicant, the Board found that the characterization of service received at the time of discharge was appropriate. However, based upon the applicant having one reenlistment prior to any misconduct, the Board concluded that noting his continuous honorable service for his first term of service should be noted on his DD Form 214. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 19 August 1988 until 22 May 1991.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to 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. ADMINISTRATIVE NOTE(S): 1. Army Regulation 635-5 for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter, in Remarks, “CONTINUOUS HONORABLE ACTIVE SERVICE FROM” (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment). Then enter the specific periods of reenlistments as prescribed above. 2. As a result amend item 18 (Remarks) of his DD Form 214 by adding the following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19880819 - 19910522.” 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 (Personnel Separations – Separation Documents) states for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter “CONTINEOUS HONORABLE ACTIVE SERVICE FROM" and specify the appropriate dates. 3 Army Regulation 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. 4. 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) AR20160017930 5 1