ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170014035


APPLICANT REQUESTS: an upgrade to his under honorable conditions 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 the crack epidemic forced him to return home early because of 
family, and a lack of understanding of the issue.

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

	a.  He enlisted in the Regular Army on 4 September 1986. 

	b.  On 19 February 1988, he accepted non-judicial punishment (NJP), under the 
provisions of Article 15, Uniform Code of Military Justice (UCMJ), for stealing items that 
amounted to about $34.00 on 6 February 1988. 

	c.  On 12 May 1989, he accepted NJP, under the provisions of Article 15, UCMJ, 
willfully participating in a quarrel and disturbing the peace on 24 April 1989.

	d.  On 31 May 1989, 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 with numerous reports of being late for formations, and a 
history of violence both domestic and job related.  The commander recommended that 
he receive a general, under honorable conditions discharge.  The commander advised 
him of his rights to counsel, and provided him an opportunity to submit statements on 
his behalf.
	e.  On 31 May 1989, the applicant signed the acknowledgement of notification, and 
on 7 June 1989, waived his rights to counsel and waived the consideration of his case 
by an administrative separation board.  He did provide a statement on his behalf but it is 
not available. 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 her
*	as a result of issuance of a discharge under other than 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 her discharge will be 
upgraded

	f.  On 12 June 1989, the applicant was recommended for separation under the 
provisions of AR 635-200, chapter 13, unsatisfactory performance, by his commander.  
The separation authority approved his separation on 28 June 1989, and directed the 
applicant to receive a general, under honorable conditions character of service 
discharge.

	g.  The applicant was discharged on 13 July 1989, under the provisions of 
AR 635-200, chapter 13, due to unsatisfactory performance.  His DD Form 214 shows 
that he completed 2 years, 10 months and 10 days of active service with no lost time 
and was furnished with a general discharge under honorable conditions 
characterization.  She was awarded or authorized the:

*	Army Achievement Medal
*	Army Service Ribbon
*	Driver and Mechanic Badge

4.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade 
of his character of service.  After considering the evidence, the ADRB denied his 
request.
5.  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. 

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 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.  He was discharged for an unsatisfactory performance, which included 
violence both domestic and job related, and was provided an under honorable 
conditions (General) characterization of service.  The Board agreed that the applicant's 
discharge characterization is warranted as he did not meet the standards of acceptable 
conduct and performance of duty for Army personnel.

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 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 (Honorable) 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 (General) 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)	 AR20170014035

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