ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170000830 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions 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) * Letter from Disabled American Veterans (DAV) 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 that he delayed a response due to a divorce and his father's death. He also states the counseling statements he received were biased. He was told to send the paperwork and that his discharge would be honorable, not general. The discharge packet was to be upgraded by mail but it never was. He has hoped to be able to request that this change be reflected in his discharge as honorable without "general." 3. The applicant provides a letter, dated 29 December 2016 from DAV which requests a review of discharge as a basis for a claim for benefits administered by the Department of Veterans Affairs. 4. A review of the applicant's service records shows the following: a. He enlisted in the Regular Army on 15 May 1990. b. He was frequently counseled for a variety of infractions including failure to follow orders, marginal performance, failure to be at his appointed place of duty, inability to work with others, and other infractions. a. c. On 7 May 1991, the applicant’s immediate commander notified the applicant of his initiation of separation under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance. The immediate commander stated that despite counseling, the applicant showed no interest in improving as a Soldier. His behavior showed that he had no potential for further military service. d. The applicant received a medical and mental evaluation and was found to be able to understand and participate in the administrative proceedings. e. He was advised of the basis for the contemplated separation under the provisions of Chapter 13 of AR 635-200, its effects, the rights available to him, and any action taken by him in waiving his rights. He acknowledged his understanding that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. He elected not to submit statements on his own behalf. f. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge. g. On 7 May 1991, the separation authority approved the applicant’s discharge under the provisions of paragraph 13-2a of AR 635-200 for unsatisfactory performance and directed that he be furnished a General Discharge Certificate. h. He was discharged on 17 May 1991. His DD Form 214 shows he was discharged under the provisions of Chapter 13 of AR 635-200 for unsatisfactory performance, with a characterization of service as general, under honorable conditions. He completed 1 year and 3 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 5. By regulation, a Soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of Soldiers separated under Chapter 13 of AR 635-200, will be characterized as honorable or under honorable conditions as warranted by their military record. 8. In reaching its determination, the Board can 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 short term of service completed prior to multiple occasions of UCMJ violations, as well as, in the Board’s opinion, a lack of mitigating factors for the misconduct presented by the applicant, the Board concluded the characterization of service received at the time of discharge was 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. 4/29/2019 X CHAIRPERSON Signed by: 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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provided an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 of the regulation in effect at the time provided for separation for unsatisfactory performance. The regulation that separation action would be taken when, in the commander’s judgement, the individual would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. Paragraph 13-11 states service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions as warranted by their military record. 3. 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. 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, 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 1. punishment. 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.