ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170006434 APPLICANT REQUESTS: an upgrade of his other than 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) * Self-authored Statement 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 he wasn’t aware of the Army Board of Corrections process and he would have completed it a long time ago. He believes he was an outstanding Soldier. For the last 17 years, he has maintained a disciplined military lifestyle as a leader and personal trainer, and has helped many people achieve their goals. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 30 November 1984. b. On 3 March 1986, he accepted nonjudicial punishment (NJP) for failure to go to an appointed place of duty on two separate occasions. He received 14 days extra duty. c. On 20 May 1987, he accepted NJP for making false statements. He was fined $200 (suspended 180 days), reduction to the grade of E-3, 14 days extra duty, and 14 days restriction. d. On 12 August 1987, he accepted NJP for wrongfully stealing two pizzas and a temperate bag from the ‘Pizza Time’ deliveryman. He was fined $300 for 2 months, 45 days of extra duty, and 45 days restriction. a. e. On 9 February 1988, he accepted NJP for unlawfully striking another Soldier. He was fined $156 for 1 month, reduced to E-1, and received 14 days extra duty and restriction. f. On 25 March 1988, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, in effect at the time, for unsatisfactory performance. g. On 30 March 1988, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and submitted statements on his own behalf. He was advised of: * he could expect to encounter substantial prejudice in civilian life if a general discharge under other than 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 than honorable conditions discharge h. On 31 March 1988, while pending separation action, he accepted NJP for failure to obey an order. He received 14 days extra duty and 14 days restriction. i. Subsequent to the applicant’s acknowledgement, the immediate commander initiated separation action against him for unsatisfactory performance. j. The separation authority approved discharge under the provisions of chapter 13, AR 635-200, by reason of unsatisfactory performance and ordered his service be characterized as under honorable conditions (general). k. The applicant was discharged on 13 April 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 13 of AR 635-200 with a general, under honorable conditions characterization of service. He completed 3 years,4 months, and 14 days of active service. It also shows he was awarded or authorized the: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar 4. By regulation, action will be taken to separate a Soldier when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 13. 1. 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 a pattern of misconduct, some involving serious violent behavior, as well as a lack of character evidence to show that the applicant has learned and grown from the events leading to discharge, 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. 5/21/2019 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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable distinction 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 characterization would be clearly in appropriate. 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 Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 of this regulation provides procedures for separating members when it is determined that he or 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.