ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20170002531 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to honorable. 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) * 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 that his discharge was inequitable because it was based on one isolated issue in 4 years, 2 months, and 14 days of active and inactive service. 3. A review of the applicant’s service record shows: a. Having had prior service in the U.S. Army Reserve, he enlisted in the Regular Army on 10 November 1987. b. He received eleven counseling statements 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, dishonored checks, domestic violence, and other infractions. c. He accepted nonjudicial punishment under the provisions of Article 15 on 2 September 1988 for disobeying a lawful order. d. He received a bar to reenlistment on 26 September 1988 and approved on 18 October 1988 for: a. * failure to obey a lawful order on 2 September 1988 * dishonored check on 30 August 1988 * five counseling statements for being absent from place of duty and unauthorized use of official phone on various dates e. The family advocacy case management team memorandum dated 4 November 1988, provided results of their investigation as substantiated spouse abuse. They recommended the case be opened as the social work service provided marital counseling and enrollment in the domestic conflict containment group. f. On 23 November 1988, the punishment of reduction to E-3/PFC imposed on 2 September 1988, for disobeying a lawful order, was vacated. g. The DA Form 3997, military police desk blotter listed a summary of complaints for incidence of domestic disturbance, assault, and wrongful damage to government property while involved in a verbal altercation on 25 November 1988. h. On 12 December 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unsatisfactory performance. He recommended a general under honorable discharge. He cited the reason as the applicant did not respond to rehabilitative measures and continued to have an adverse impact on the military discipline and good order of the unit. He was not able to function in his primary military occupational specialty (PMOS) and it was likely that he would continue to be a disruptive influence. He listed his specific unsatisfactory performances as: * reported to place of duty two hours late * failed to report to place of duty * late to place of duty * wrote a bad check * unauthorized use of a military phone * wrote a bad check * investigated for suspected spouse abuse and substantiated * charged for domestic disturbance, assault consummated by a battery and wrongful damage to government property * late to place of duty i. On 13 December 1988, the applicant received a medical and mental evaluation and was found within normal limits. There was no evidence of a psychological disorder, cleared for any administrative action deemed appropriate by command. j. On 15 December 1988, he acknowledged receipt of the commander's intent to separate him and consulted with legal counsel. He was advised of the basis for the a. contemplated separation for unsuitability, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He further indicated that he understood: • he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him • he could be ineligible for many or all benefits as a veteran under federal and state laws as a result of the issuance of an under other than honorable conditions discharge k. The unit commander 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 to be characterized as under honorable conditions. l. On 23 December 1988, three statements were submitted on the applicant’s job performance. They stated, in part, that in the short period of time, he has done an outstanding job. He has proven to be an intelligent, hard worker that quickly grasped tasks. m. On 4 January 1988, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 13, separation for unsatisfactory performance and directed that he be furnished a general discharge certificate. n. He was discharged on 19 January 1989. His DD Form 214 showed 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, 2 months, and 10 days active service during this period and 4 months and 28 days prior service. It also shows he was awarded or authorized: • Army Service Ribbon • Marksman Marksmanship Qualification Badge with Rifle Bar 4. By regulation (AR 635-200), 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. 5. 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. 1. 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 a pattern of misconduct beginning, some involving serious violent behavior, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 1535874 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. c. Chapter 13, of the version in effect at the time, sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 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 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 1. 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.