ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  23 May 2019

	DOCKET NUMBER:  AR20170016969


APPLICANT REQUESTS:  An upgrade of his under honorable conditions discharge to honorable.

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 he was forced out by intimidation to sign out then returned for hearing after separation where he was exonerated by a witness in a military court but was not allowed to return to his unit.  He was told there was nothing he could do and no one would listen or help fix his problem.  He is a humble man that would like to apply for a Veteran Affairs (VA) home loan.

3.  The applicant provides his DD Form 214 that shows he was released from active duty under provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separation-Enlisted Personnel) paragraph 13-2 for unsatisfactory performance with an under honorable conditions (general) character of service.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 11 September 1990.

	b.  On 16 July 1991, he underwent a command-directed mental status evaluation.  He was psychiatrically cleared for any administrative or judicial action deemed appropriate.

	c.  On 21 July 1991, he was involved in a traffic accident with injuries by failing to pass safely, operating a vehicle out of class, and not having proof of insurance.

	d.  On 26 July 1991, he accepted non-judicial punishment for drinking under the age of 21 and operating a POV (privately owned vehicle) without possessing a valid operator’s license.  He was reduced to private/E-1.

	e.  On 15 August 1991, military police report states the applicant was charged with assault consummated by battery.  He was placed in pre-trail confinement by authority of Lieutenant Colonel X___.

	f.  On 22 October 1991, report of trial indicated the applicant was sentenced to confinement for five months and reduced to private/E-1 for assault consummated by a battery.  The record is void of any special court martial order number 20, dated 4 September 1991.

	g.  On 6 November 1991, he was released from confinement.

	h.  On 7 November 1991, the command notified the applicant of separation under the provisions of AR 635-200 paragraph 13-2.  The specific reasons are shows as: 

* being drunk on duty 
* being involved in an alcohol related incident
* failing to pass safely 
* drinking under age 
* convicted for assault consummated by battery 

	i.  The applicant acknowledged receipt of proposed separation.  He consulted with counsel and was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for (unsatisfactory duty performance) UP of chapter 13, AR 635-200, its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He 

* waived consideration of his case by a board of officers and personal appearance before a board of officers
* declined making a statement in his own behalf
* understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him
* understood that, as the result of issuance of a discharge certificate under conditions other than honorable, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws
* understood he could expect to encounter substantial prejudice in civilian life

	j.  On 7 November 1991, his immediate commander initiated separation actions UP of AR 635-200 chapter 13-2 for unsatisfactory duty performance.

	k.  On 7 November 1991, the separation authority approved separation UP of AR 635-200 chapter 13-2.  He ordered the applicant to receive a general discharge.

	l.  On 15 November 1991, he was released from active duty.  His DD Form 214 shows he was released from active duty under the provisions of AR 635-200 paragraph 13-2 for unsatisfactory performance with an under honorable conditions (general) character of service.  He completed 1 year, 2 months, and 5 days of active service.  He was awarded the Army Service Ribbon, National Defense Service Medal, and Marksman Badge with Grenade and Rifle Bars.

5.  By regulation, AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.

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 relatively short term of service completed prior to misconduct beginning, some misconduct involving violent behavior, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge 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 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 Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 (Separation for Unsatisfactory Performance) of the regulation in effect at the time states member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

	a.  Paragraph 3-7a 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 any other characterization would be clearly inappropriate.

	b.  Paragraph 13-2 states Commanders will separate a member for unsatisfactory performance when it is clearly established that:

		(1)  In the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

		(2)  The seriousness of the circumstances is such that the member's retention would have an adverse impact on military discipline, good order, and morale.

		(3)  It is likely that the member will be a disruptive influence in present or future duty assignments.

		(4)  It is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur.

		(5)  The ability of the member to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.

		(6) The member meets retention medical standards (AR 40-501).

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)	 AR20170016969


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