ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170004168 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to an honorable. 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) 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 (ABCMR) 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 completed his first contract under honorable conditions and then he reenlisted. He had trouble during his training and he failed his military occupational specialty qualification and was discharged as a result. 3. A review of the applicant’s service record shows: a. He enlisted on 8 January 2008 in the Regular Army. b. He served in an imminent danger pay in Iraq from 13 November 2009 to 21 August 2010. c. He completed his first full term of service; however, his reenlistment contract is unavailable for the Board to review. d. He accepted nonjudicial punishment on 25 November 2011 for willfully disobeying a lawful order from a senior drill sergeant on or about 19 September 2011. e. On 5 December 2011, the immediate commander recommended to the headquarters commander that the applicant to be separated from the United States Army prior to the expiration of his term of service, under the provisions of AR 635- 200 (Personnel Separations - Enlisted Personnel), chapter 13. f. The facts and circumstances surrounding the immediate commander’s notification of his intent to separate the applicant is not available for the Board’s review. g. On 5 December 2011, his immediate commander initiated action to separate him under the provisions of AR 635-200, chapter 13 for unsatisfactory performance. h. The applicant acknowledged receipt of his application notice for separation from his immediate commander on 5 December, 2011. i. After consulting with legal counsel on 6 December 2011, he acknowledged: * he was advised by counsel of the basis for contemplated action for separation for unfitness * statements on his own behalf are not submitted * he request consulting with military counsel and representation and or civilian counsel at no expense to the government * he may expect to encounter substantial prejudice in civilian life * he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge is issued * he may, as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he waived consideration of his case by a board of officers * he was not a victim of sexual assault which an unrestricted report was filed * he did not believe the intended separation action is the direct or indirect result of sexual assault itself or the filing of the unrestricted report j. Consistent with the chain of command recommendations, on 7 December 2011, the separation approval authority ordered the applicant to be discharged under provisions of AR 635-200, chapter 13 for unsatisfactory performance. k. On 12 January 2012, he was discharged from active duty under the provisions of AR 635-200, chapter 13. His DD Form 214 shows he completed 3 years, 8 months and 5 days of active service. It also shows he was awarded or authorized the: * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraqi Campaign Medal with Campaign Star * Army Service Ribbon * Overseas Service Ribbon 4. On 26 January 2012, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 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 because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 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 found relief was not warranted. Based upon the justification for the command’s initiation for separation including a pattern of misconduct which included an assault against another, the Board concluded that 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. 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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for separation of enlisted personnel: a. Paragraph 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor: 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. b. Paragraph 3-7b (General Discharge) states that a general discharge is a separations from the Army under honorable conditions, it is issued to a member whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 states a Soldier may be separated per this chapter when it is determined that he/she is unqualified for further military service, because of unsatisfactory performance 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 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170004168 4 1