ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 November 2019

	DOCKET NUMBER:  AR20170013508


APPLICANT REQUESTS:  an upgrade of the character of service reflected on her DD Form 214 (Certificate of Release or Discharge from Active Duty) from general under honorable conditions to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Separation Packet

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 (ABCMR) 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 stated that she was first recommended for an Honorable character of service.

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

	a.  The applicant enlisted in the Regular Army on 12 September 1997.

	b.  On 10 February 1998, her immediate commander notified her of his intent to initiate separation action against her in accordance with Army Regulation (AR)
635-200 (Active Duty Enlisted Administrative Separations), chapter 13 (Separation for Unsatisfactory Performance), for unsatisfactory performance.  Her commander remarked that she have been counseled in writing for failing to achieve the minimum Army standards on the Army Physical Fitness Test (APFT).

	c.  On 6 April 1998, the applicant acknowledged receipt of the commander's notification.  She consulted with legal counsel and was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharges she could receive, if she received a discharge/character less than honorable she could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading, and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.
 
	d.  On 6 April 1998, the applicant's immediate commander recommended a honorable characterization of service in accordance with AR 635-200, chapter 13, for unsatisfactory performance.  Her commander cited failure a record APFT, and any attempt to pass her AFPT's are unsatisfactory and continue to be a severe problem as the reason for the separation action.

	e.  On 7 April 1998, the separation authority approved the applicant's discharge under the provisions of AR 635-200 by reason of unsatisfactory performance.  Additionally, the separation authority directed the applicant be furnished a General Discharge Certificate and that she would not be transferred to the Individual Ready Reserve.  

	f.  Accordingly, the applicant was discharged on 8 April 1998.  The DD Form 214 she was issued confirms she was discharged in accordance with chapter 13 of AR 635-200 with a characterization of service of general, under honorable conditions by reason of unsatisfactory performance.  She completed a total of 6 months, and 27 days of net active service.  

	g.  There is no indication she applied to the ADRB for an upgrade of her discharge within that board's 15-year statute of limitations.

4.  There is no evidence in her available military records that indicates she was sexually assaulted or requested a transfer during her period of active service. 

5.  Army Regulation (AR) 635-200 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  This reason will not be used if the Soldier is in entry level status.

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 not warranted.  Based upon the short term of honorable service completed prior to separation, the Board concluded that the characterization of service received at the time of separation 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.
	 
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 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 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

	b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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.

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)	 AR20170013508


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