ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170009607


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 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 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 feels his discharge needs to be changed due to the fact that he was a good Soldier.  He made mistakes, like missing some formations, but he was a new entrant into the Army.  He would like this upgrade so that he can use his GI Bill to continue his education in order to better his life for his family.  The choices that he made were stupid and he knows that he was wrong.  

3.  A review of the applicant’s service record shows:

	a.  He enlisted on 7 January 2009 in the Regular Army. 

	b.  He accepted nonjudicial punishment under Article 15 on/for:

* 22 October 2009 for one specification of signing a false official statement
* 1 April 2010 for one specification of failing to go to his appointed place of duty and failing to obey an order from a noncommissioned officer

	c.  On or about April 2010, his immediate commander notified him of his intention to initiate separation against him for unsatisfactory performance.  The exact date of the notification is unavailable for the Board to review.  

	d.  On 13 April 2010, he consulted with legal counsel regarding the provisions of Army Regulation (AR) 635-200 (Active duty Enlisted Administrative Separations), chapter 13 (Unsatisfactory Performance).  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life if a general discharge under honor conditions is issued to him
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he understands that if h receives a discharge;/character of service that is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realize that an act of consideration by either Board does not imply that his discharge will be upgraded
* he elected not to submit a statement on his own behalf

	e.  On 13 April 2010, the immediate commander initiated separation against him under the provisions of AR 635-200, chapter 13.  

	f.  Consistent with the chain of command recommendation, the separation authority approved the discharge recommendation for the immediate separation under the provisions of AR 635-200, chapter 13, for unsatisfactory performance.  He would be issued a General Discharge Certificate.  

	g.  He was discharged from active duty on 23 April 2010 under the provisions of Chapter 13, AR 635-200, for unsatisfactory performance with a general, under honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects completion of 1 year, 3 months, and 17 days of active duty.  It also shows he was awarded or authorized the National Defense Service Medal. 

	h.  On 9 July 2014, after careful review of his application, military records, and all other available evidence, the Army Discharge Review Board determined he was properly and equitably discharged.  His request for a change in character of his discharge was denied.  

4.  By regulation, 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.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

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 the misconduct, as well as the applicant already receiving a general discharge, the Board concluded there was no error or injustice which would warrant making a change to the characterization of service.

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 (Active duty Enlisted Administrative 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 soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that nay 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 soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 13 (Unsatisfactory Performance) 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.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

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 the 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, 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 upgrade service characterization.  

ABCMR Record of Proceedings (cont)	 AR20170009607


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