ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20170017075 APPLICANT REQUESTS: an upgrade to his under honorable conditions (general) discharge to an honorable discharge and change narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States). 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 his discharge was due to several family issues. He had personal issues with his wife. An early discharge was offered to him with the understanding it would go from general under honorable conditions to honorable in five years. He later found that to be untrue. His record will show in 1 year and 11 months of active duty, he reached the rank/grade of specialist/E-4 and his performance was above satisfactory. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 2 October 1987. He served in Hawaii from 10 December 1988 10 October 1989. b. He received seventeen counseling statements on various dates between February 1989 and September 1989 for a variety of infractions, including signing an unauthorized rental agreement, dishonored checks (insufficient funds), performance counseling, promotion eligibility, failure to manage personal affairs, bar to reenlistment, and disobeyed a lawful order from a superior officer. c. On 24 July 1989, he was barred from reenlisting for nonpayment of debts. a. d. On 17 August 1989, he underwent a mental evaluation, the examiner qualified the applicant for the purpose of chapter 13. e. On 14 September 1989, he underwent a physical examination, the medical staff cleared the applicant for administrative action deemed appropriate by commander. d. On 21 September 1989, he was notified by his immediate commander, of his intent to separate the applicant under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) chapter 13, for unsatisfactory performance. c. On 22 September 1989 he consulted with legal counsel, and he acknowledged: * the basis for the contemplated action to accomplish his separation for unsatisfactory performance, its effects, and of the rights available to him and the effect of waiving his rights * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could request an administrative separation board * he elected to submit a statement on his own behalf d. The applicant stated in summary that he received two certificates of achievement for his performance during a field training exercise. He received a handwritten letter from the battalion commander and he had been promoted to E-4. He agreed with the separation because he had extreme financial troubles. He asked for an upgrades of his discharge so he could utilize the veteran education entitlements. e. His immediate commander initiated action to separate him under the provisions of AR 635-200 chapter 13, for unsatisfactory performance on 29 September 1989. f. On 29 September 1989, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 13-2 for unsatisfactory performance. He directed that he be issued a General Discharge Certificate g. On 13 October 1989, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 13. His characterization of service is a general, under honorable conditions discharge. He completed 1 year, 11 months, and 4 days of active service. It also shows he was awarded or authorized the Army Service Ribbon. h. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 4. By regulation, a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The 1. service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 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 but not sufficiently meritorious to warrant an honorable discharge. 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 reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his records of service, the frequency and nature of his misconduct, the bar to reenlistment, the reason for his separation and character of service, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence to include the pattern of misconduct which led to the applicant’s separation, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to either the characterization of service or the narrative reason for separation. The Board found the current entries on the applicant’s DD Form 214 accurately depict the discharge of the applicant. 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. 8/13/2019 X CHAIRPERSON Signed by: 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 (Enlisted Separations – Personnel Separations), in effect at the time, set forth the basic authority for the administrative 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 any other characterization would be clearly inappropriate. b. Chapter 13 of that regulation provides a member may be separate 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 conditions as warranted by their military record. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.