ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20170005453 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 would like his discharge upgraded to an honorable discharge. He was held under prejudice because of his skinny body dimensions and weight of approximately 130 pounds. He further states that his superiors were ordered by his company commander to run him extra hard and to be very critical of anything within his sphere of influence. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 24 January 1989. He served in Hawaii from 27 April 1989 to 19 December 1989. b. He accepted nonjudicial punishment on/for: * 28 July 1989, for failure to be at his appointed place of duty * 28 November 1989, for disorderly conduct; his punishment consisted of reduction to E-1 c. On 8 December 1989, the applicants immediate commander notified him he was initiating separation action against him in accordance with Army Regulation 635-200 (Personnel Separations-Enlisted Separations), chapter 14, paragraph 14-12b for pattern of misconduct. a. d. On 8 December 1989, he was advised by his consulting counsel of the basis for the contemplated action to separate him for patterns of misconduct under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him * he would be ineligible to apply for enlistment in the Army or any other armed forces for a period of 2 years after discharge e. On 8 December 1989, his immediate commander initiated action to separate him under the provisions of AR 635-200, chapter 14, paragraph 14-12b. f. On 8 December 1989, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-200, paragraph 14-12b (Patterns of Misconduct) with the issuance of a General Discharge Certificate. g. The applicant was discharged from active duty on 21 December 1989 under the provisions of Army Regulation 635-200, paragraph 14-12b (Misconduct-Pattern of Misconduct). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 months and 28 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Marksman-Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert-Marksmanship Qualification Badge with Hand Grenade Bar 4. By regulation, members are subject to separation for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. 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. 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 UCMJ violations, as well as the applicant already receiving an Under Honorable Conditions (General) discharge certificate, the Board concluded there was no error or injustice which warranted correcting the record. 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 Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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 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. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. Chapter 14 of that regulation states members are subject to separation for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. 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 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.