ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20170002175


APPLICANT REQUESTS: 

* an upgrade of his discharge from general under honorable conditions to honorable
* foreign service credit for service in Somalia on or about 1993
* personal appearance before the Board

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), period ending 14 January 1994

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:

   a. He requests, in effect, an upgrade of the character of service related to his discharge from the Regular Army, from general under honorable conditions to honorable to improve his opportunities for federal employment.  

   b. He was stationed at Fort Hood, TX, from 1991-1994 and was deployed to Somalia in 1993 for 5 months.  He believes the unit he deployed with was the 157th Forward Support Command, 13th Corps Support Command.  The applicant states he was never given any paperwork or orders stating he was deployed to that location.  He would like to have that period of foreign service added to his DD Form 214 associated his separation from the Regular Army in 1994. 

3.  The applicant provides a copy of his DD Form 214 covering his period of service in the Regular Army from 4 January 1991 to 14 January 1994.

4.  There were minimal documents found, detailing the applicant’s service during the period of service referenced on the DD Form 214 he provided.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  A review of available documents in his service record shows:  

   a. He enlisted in the Regular Army on 4 January 1991 and attained the rank of private first class/E-3.

   b	On 29 May 1991, the applicant was determined to have received an injury in the line of duty by the commander of 13th COSCOM, Fort Hood, TX.  DA Form 2173 (Statement of Medical Examination and Duty Status), references the applicant was admitted to the Darnall Army Community Hospital, Fort Hood, TX, on 7 March 1991, for an injury he received while deployed in the region of Saudi Arabia on or about 
8 February 1991.

   c.	On 31 October 1991, the applicant was awarded an Army Commendation Medal, issued by the 21st Evacuation Hospital, for meritorious service in support of U.S. Army operations in Southwest Asia.

   d.	On 13 November 1991, the applicant was awarded an Army Achievement Medal, while assigned to the 21st Evacuation Hospital, for meritorious service in support of U.S. Army operations in Southwest Asia.

   e.	His service record is void of all discharge documentation leading up to his release from active duty (REFRAD) from the period of service listed on the 
DD Form 214 associated with this case.

   f.	Orders 4-2, dated 6 January 1994, issued by 546th Personnel Service Battalion (Provisional), Fort Hood, TX, shows the applicant in the rank and pay grade of private/E-2, reassigned the applicant to the U.S. Army Transition Point, Fort Hood, TX to be REFRAD, then assigned to the U.S. Army Reserve Control Group (Reinforcement) effective 14 January 1994.

   g.	His DD Form 214 also shows he was REFRAD under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 13.  He completed 3 years and 11 days of active service, and received a general under honorable conditions character of service.  The narrative reason for separation is unsatisfactory performance.  He had no lost time during this period of service.

   h.	Item 12f (Foreign Service) of his DD Form 214, shows he completed 8 months and 4 days of foreign service.  

	i.	Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons 
Awarded or Authorized) of the same form, shows he was awarded or authorized:

* National Defense Service Medal
* Southwest Asia Service Medal with 3 bronze service stars
* Kuwait Liberation Medal
* Army Service Ribbon

		(3)  Item 18 (Remarks) shows, in part, the following:  “Service in Southwest Asia 4 February 1991 – 15 May 1991; 15 July 1991 – 6 December 1991”.

5.  By regulation (AR 635-8 (Separation Processing and Documents)), item 12f of the DD Form 214 lists all foreign service performed outside continental United States.  Only when active duty Soldiers are deployed with their unit during their continuous period of active service, the entry “SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates).” is entered in Item 18 of the application’s DD Form 214. 

6.  By regulation (AR 15-185 (ABCMR)), an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

7.  By regulation (AR 635-200), in effect at the time, Soldiers are subject to separation under the provisions of chapter 13, when he or she is unqualified for further military service because of unsatisfactory performance.  An honorable or under honorable conditions (general) discharge was an appropriate and authorized characterization of service. 

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 review of the application and all evidence, the Board determined that they could reach a fair and equitable decision in the case without a personal appearance by the applicant.

Additionally, the Board concluded there was insufficient evidence to grant relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  The applicant’s record is absent evidence of UCMJ; however, his record shows he was a PFC and separated as a PV2.  In addition, he was not awarded the Army Good Conduct Medal.  Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.  

Finally, the Board found that based upon the documentary evidence submitted by the applicant and found within his service record it shows he served in SWA; however, there is insufficient evidence showing he served in Somalia.

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, set forth the basic authority for the separation of enlisted personnel.

a. Paragraph 3-7a provides that an honorable discharge is given when the quality of 
the Soldier's service has generally met standards of acceptable conduct and duty performance.

b. Paragraph 3-7b provides that a general discharge is a separation from the Army 
under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

   c.  Chapter 13 provides Soldiers are subject to separation under the provisions of chapter 13, when he or she is unqualified for further military service because of unsatisfactory performance.  An honorable or under honorable conditions (general) discharge was an appropriate and authorized characterization of service. 

3.  AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for processing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It states the total amount of foreign service completed during the period covered by the DD Form 214 is entered in Item 12f and is obtained from the Soldier’s records.  For an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "Service in (Name of County Deployed) from (inclusive dates for example, YYYYMMDD – YYYMMDD)."

5.  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 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.  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)	 AR20170002175


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