ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170011527 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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: a. In May of 1994, he was signing out for emergency leave and his Battalion Commander discovered that a previous request for a compassionate reassignment to better care for his terminally ill mother and younger brother was denied, because his military occupational specialty (MOS) was not available in his home state of Illinois. He also says an early discharge was authorized and he decided that this was in his best interest. b. There was no disciplinary actions nor anything negative in his record to deserve anything less than an honorable discharge. He goes on to say that until his recent federal government job search, he had no need to seek an upgrade to his discharge rating and that there was no reason for anything less than an honorable discharge. He had 5 years of faithful service to include his time serving in Desert Shield/Storm. He is requesting an upgrade to his discharge so that he can obtain government employment. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 April 1989 and reenlisted on 10 December 1991. b. He served overseas in Saudi Arabia from 7 January 1991 to 6 April 1991 and in Germany from 22 July 1992 until his separation in June 1994. c. On 28 April 1994, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations) chapter 13, for unsatisfactory performance, specifically for several counseling statements between 12 August 1992 and 11 April 1994 for the following: * failing to pay debts * failing to be at appointed place of duty * failing to renew the insurance on his privately owned vehicle * breaking his profile * dishonored checks * making a false statement d. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. e. On 28 April 1994, the applicant acknowledged receipt of his commander’s notification of chapter 13 discharge and exercised rights to counsel and submitted a statement on his behalf. He understood the following: * he may expect to encounter substantial prejudice in the civilian life if a general discharge, under honorable conditions is issued to him * as a result of issuance of a general discharge under honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading, but realizes that an act of consideration by either boards does not imply that his discharge will be upgraded f. On 6 May 1994, the applicant was recommended for separation by his commander and his chain of command concurred. The separation authority approved his separation on 9 May 1994, and directed the applicant to receive a general, under honorable conditions character of service discharge under the provisions of AR 635-200, chapter 13, paragraph 13-2a for unsatisfactory performance. g. The applicant was discharged on 3 June 1994, under the provisions of AR 635-200, chapter 13, paragraph 13-2a, due to unsatisfactory performance. His DD Form 214 shows that he completed 5 years, 1 month and 22 days of active service with no lost time. He was awarded or authorized the: * Army Achievement Medal * Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Southwest Asia Service Medal with 2 Bronze Stars * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge Hand Grenade * Drive and Mechanic Badge with Driver Bar * Kuwaiti Liberation Medal 4. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 13, when he or she is unqualified for further military service because of unsatisfactory performance. An honorable or under honorable conditions (general) discharge was an appropriate and authorized characterization of service. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct and 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. However, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that change be made to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 12 April 1989 until 9 December 1991.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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 for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b 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. A characterization of under honorable conditions may be issued only when the reason for the member’s separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 13-1, of this version, in effect at the time, established policy for members that may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. d. Paragraph 13-2 says that commanders will separate a member for unsatisfactory performance when it is clearly established that: * in the commander’s judgement, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and moral * it is likely that the member will be a disruptive influence in the present or future duty assignments * it is likely that the circumstances forming the basis for initiation of separations proceedings will continue or recur * the ability of the member to perform duties effectively in the future, including potential for advancement or leadership is unlikely 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) AR20170011527 4 1