ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 April 2019

	DOCKET NUMBER:  AR20160017978


APPLICANT REQUESTS:  In effect, that his under other than honorable conditions discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 1 April 1988

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, he believes he was discharged in error and requests it be investigated and he be cleared. 

3.  The applicant enlisted in the Regular Army on 13 May 1986.  

4.  The applicant accepted nonjudicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: 

* on 3 September 1987, for failing to go to his prescribed place of duty on 
31 August 1987
* on 8 December 1987, for failing to go to his prescribed place of duty on 
18 November 1987
* on 26 February 1988, for failing to go to his prescribed place of duty on 
20 February 1988

5.  The applicant was counseled on at least 11 separate occasions between September 1987 and February 1988.  His DA Forms 4856 (General Counseling Form) show he was counseled for various reasons, including but not limited to, missing formation, failure to report, and failure to repair.

6.  The applicant's commander notified the applicant on 14 March 1988 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 receiving two Article 15s and numerous counseling statements for unsatisfactory performance.  His commander informed him that he would recommend he receive a general discharge.

7.  The applicant consulted with counsel on 14 March 1988 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 

8.  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 13-2, by reason of unsatisfactory performance based on the applicant's receipt of two Article 15s and numerous counseling statements for unsatisfactory performance.

9.  Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 23 March 1988, by reason of unsatisfactory performance, and directed that his service be characterized as general, under honorable conditions.

10.  The applicant was discharged on 1 April 1988.  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).  

11.  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 determined that relief was not warranted.  The Board concluded, based upon the relatively short term of serve completed prior to multiple occasions of misconduct beginning and a failure of the applicant to provide any mitigating factors for the misconduct, relief was not appropriate. 

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 635-200, 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.  

3.  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)	 AR20160017978


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