ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20170010732 APPLICANT REQUESTS: An upgrade of his under honorable condition (general) 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 under honorable conditions discharge changed to honorable. He states he was discharged shortly after his wife had been sexually assaulted. He lost the desire to be in the service. His chain of command wanted to cover up an NCO's (noncommissioned officer) career over the applicant’s career. Prior to the assault it was noticeable that he achieved promotions quickly. His chain of command was not as helpful to him given that his wife had been assaulted. He believes the command was more interested in saving the career of the NCO who assaulted his wife. He felt he was being treated differently after the assault by his chain of command. He felt he was forced to make a decision on supporting his family or continuing in the service. He regretted the decision to leave the military. He feels his request for an upgrade is reasonable. He goes on to say when people are young, they make bad choices that can and will impact their lives. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 February 1987. b. He received ten (10) counseling statements on various dates for a variety of infractions, including, failure to make morning formation, failure to maintain field equipment, and loss of government property. c . On 9 March 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 his command d. On 8 April 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 conditions 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. e. On 14 April 1988, the applicant acknowledged receipt of the commander's intent to separate him and consulted with legal counsel. He was advised of the basis for the contemplated separation for unsatisfactory performance, 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 * he understand that if he receive a discharge certificate/character or service which 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 to not submit a statement on his own behalf f. On 14 April 1988 the unit commander recommended separation from the service and waiver of further rehabilitative efforts. The unit commander recommended approval of the separation action to be characterized as under honorable conditions. g. On 19 April 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. h. On 5 May 1988, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 the Army Service Ribbon and Expert 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. 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 warranted. Based upon the nature of the misconduct, the mitigating reasons provided by the applicant for the misconduct, as well as he accepting full responsibility for the misconduct, the Board concluded that granting clemency by upgrading the characterization of service to Honorable was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 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) sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, 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. a. Paragraph 3-7(a) (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' any other characterization would be clearly inappropriate. b. Paragraph 3-7(b) (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. 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. ABCMR Record of Proceedings (cont) AR20170010732 4 1