ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170011831


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 he was doing his job and meeting all physical requirements expected of him.  He requests an upgrade of his general, under honorable conditions discharge to an honorable discharge.

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

	a.  He enlisted in the 30 August 1983.  

	b.  On 17 April 1984, he accepted nonjudicial punishment (NJP) under Article 15 for absenting himself from his place of duty. 

	c.  On 25 July 1984, he accepted NJP for one count absenting himself from his place of duty, two counts of disrespect to a noncommissioned officer, and one count of failing to obey an order.  His punishment included reduction to private/E-1.  

	d.  On 13 August 1984, his immediate commander notified him of his intent to initiate separation for unsatisfactory performance of duty under Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 13 for =unsatisfactory performance.. 

	e.  On 14 August 1984, he consulted with legal counsel.  He acknowledged:
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued
* he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading, however an act of consideration by either board does not imply that his discharge will be upgraded
* he will be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge

   f.  Following this acknowledgement, his commander initiated separation action against him under chapter 13 of AR 635-200.  The commander stated that the applicant had demonstrated an inability or unwillingness to meet acceptable standards required of enlisted personnel in the Army.  This failure is evidenced by the existence of the following conditions: unsatisfactory performance of duty; unqualified for further service; and failure to respond to formal counseling.  

	g.  On 14 August 1984, consistent with the chain of command recommendation, the separation approval authority ordered him discharged from the Army under provisions of paragraph 13, AR 635-200.  He would be discharged with a General Discharge Certificate.

	h.  The applicant was discharged from active duty on 22 August 1984 with a general, under honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of chapter 13 of AR 635-200 with a general discharge.  He completed 11 months and 23 days of active service.  It further shows that he was awarded or authorized: 

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar

5.  By regulation, individuals may be separated for unsatisfactory performance when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

6.  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.  One potential outcome discussed was to deny the requested relief based upon the short term of service and the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation.  However, based upon the nature of the misconduct which led to the applicant’s discharge, the Board concluded that granting an upgrade to the characterization to Honorable was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:X	:	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:X	:	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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), 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 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 member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge.  

	c.  Chapter 13 (Separation for Unsatisfactory Performance) provides a member may be separated for unsatisfactory performance when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable condition as warranted by their military record.  

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)	 AR20170011831


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