ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20170017710 APPLICANT REQUESTS: * upgrade his general discharge under honorable conditions to honorable * personal appearance before the Board 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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 states he believes his discharge was unjust because he had only one incident within 22 months of service. At the time, the Army was giving Soldiers severance pay to leave; this was during Bill Clinton's presidency and we as a country were shrinking the size of the Armed Forces to balance the budget. The applicant's leadership offered "zero support" with regard to correcting and rehabilitating him as a Soldier. He asserts there was motive and incentive to unjustly separate Soldiers and, by so doing, eliminate their ability to obtain benefits from the Department of Veterans Affairs (VA). He is now a father of four and a successful leader in his community. He values his military service and encourages young men to serve their country. The purpose of his current request is to obtain justice and integrity, not to gain benefits or money. 3. The applicant's service records show: a. He enlisted in the Regular Army on 18 March 1992. Following initial training as a 45G (Fire Control System Repairer), he was assigned to Fort Hood, TX; he arrived on or about 17 December 1992. b. On 29 March 1993, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave from 24 February until 2 March 1993. c. On 1 August 1993, he was promoted to private first class/E-3. d. On 23 November 1993, his Fort Hood commander advised him of his intent to separate the applicant under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander initiated this action because the applicant had failed to be at his appointed place of duty on numerous occasions. e. On 2 December 1993, after consulting with counsel, the applicant acknowledged counsel had informed him of the basis for the contemplated separation action. In addition, he affirmed he understood his rights and the effect of waiving those rights. He elected to submit a statement in his own behalf: * he requested an honorable discharge; he asserted, in effect, he was already being punished by waking up each day and being reminded of his mistakes; he contended he was young and, at age 20, was going to make regretful mistakes along the way * he asked the separation authority not to remind him of those painful mistakes by issuing him a general discharge; such a discharge would cause him to relive what occurred every time he filled out an application or participated in an interview f. Also on 2 December 1993, the applicant accepted NJP for failing to be at his appointed place of duty at the time prescribed. g. On 7 December 1993, the commander submitted his recommendation to separate the applicant. He noted the applicant's chain of command had counseled him numerous times and had ordered him to corrective training. The applicant displayed a lack of motivation to improve himself; he showed no desire to meet military standards of performance. h. On 10 December 1993, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions. On 21 January 1994, he was discharged accordingly. His DD Form 214 shows he was awarded the National Defense Service Medal, Army Service Ribbon and two marksmanship qualification badges. 4. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 5. The applicant asserts his discharge was unjust because he was involved in only one incident; in addition, his leadership offered no support in developing him as a Soldier. The applicant states he is now a successful leader in his community. a. Before initiating separation action, the regulation required commanders to ensure Soldiers received adequate counseling and rehabilitation. In his separation recommendation, the commander noted the applicant's chain of command had given the applicant numerous counselings and directed him to corrective training; the commander stated the applicant showed no desire to improve himself. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. The applicant did not provide letters of support or post-service achievements to consider. Based upon the military record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 13 (Separation for Unsatisfactory Performance). Soldiers could be separated under this provision when the commander determined he/she was unqualified for further military service because of unsatisfactory performance (i.e. the Soldier would not develop sufficiently to participate satisfactorily in training or become a satisfactory Soldier; was likely to be a disruptive influence; and retaining the Soldier would have an adverse impact on military discipline, good order, and morale). Before initiating separation action, commanders were required to ensure the Soldier received adequate counseling and rehabilitation. The Soldier could receive either an honorable or under honorable conditions character of service. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). 4. 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 on the basis of 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) AR20170017710 5 1