ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 August 2019

	DOCKET NUMBER:  AR20160019639


APPLICANT REQUESTS: a change in his reason for separation

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)

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 completed Basic Combat Training (BCT); however, while attending the Advanced Individual Training (AIT), he fell behind trying to learn the skills needed for the military occupational specialty (MOS) 25B.  He was discouraged and instead of reclassifying to a different MOS, he discredited himself.  He has been regretting his actions for the past 5 years and requesting that the reasoning for his separation be changed so that he may reenlist and fulfill his duty to his country.  He understands he would have to revisit BCT, but is up for the challenge.

3.  A review of the applicant’s service record shows:

a.  He enlisted in the Regular Army on 10 January 2012.

  b.  On 23 July 2012, the applicant’s immediate commander notified him of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 13 (Separation for Unsatisfactory Performance) specifically for being eliminated from the 25B course, due to multiple exam failures.
  


  c.  On 23 July 2012, the applicant acknowledged receipt of the notification of the separation action.  He consulted with counsel and he understood:
  
* the rights available to him
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued
* if issued a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life
* if issued a discharge/characterization of service that is less than honorable he may make application to the Army Discharge Review Board

   d.  On 26 July 2012, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation under the provisions of AR 635-200, Chapter 13.
     
   e.  He was discharged on 7 August 2012 with an under honorable conditions (General) discharge.  The narrative reason for the separation was unsatisfactory performance.  Separation Program Designator Code (SPD) JHJ.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 months and 28 days of net active service.

4.  On 12 November 2014, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing and found it proper, but too harsh.  The ADRB upgraded his characterization of service to honorable.  The board determined the reason for discharge was proper and equitable and voted not to change it.

5.  By regulation, a soldier may be separated when it is determined that he is unqualified for further military service because of unsatisfactory performance.

6.  The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the reason outlined in the separation packet, multiple failures of examinations, the Board concluded that the narrative reason for separation currently reflected on the applicant’s DD Form 214 was correct and that no error or injustice was present which would warrant making a change to it. 

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 (AR) 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of “JHJ” as appropriate code to assign enlisted Soldiers who are discharged under the provisions of AR 635-200, Chapter 13, by reason of unsatisfactory performance.  The regulation further stipulates that no deviation is authorized.

3.  AR 635-200 (Personnel Separations – Enlisted Separations), Chapter 13 states a soldier may be separated when it is determined that he is unqualified for further military service because of unsatisfactory performance.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.


ABCMR Record of Proceedings (cont)	 AR20160019639
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