ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170018062


APPLICANT REQUESTS:  an upgrade of his under honorable conditions (general) discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Exhibit 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 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060009849 on 5 February 2007.

3.  The applicant states his discharge was inequitable because it was based on two isolate incidents in 2 years of service with no other adverse actions.  He served honorably and he would like his military records to show the same.  

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

a.  He enlisted in the Regular Army on 25 August 1989.  

	b.  He accepted nonjudicial punishment on:  

* 22 August 1991, for failure to go to his appointed place of duty
* 30 January 1992, for disobeying a lawful order to stop personal relationship with a single Soldier and not your wife

	c.  On 31 March 1992, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 for unsatisfactory performance.

	d.  He acknowledged receipt of the commander's intent to separate him under the provisions of AR 635-200, chapter 13, for unsatisfactory performance.  He consulted with legal counsel on 31 March 1992.  He acknowledged:  

* the right to submit a written statement in his own behalf, the applicant did not submit a statement
* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he could be ineligible for many or all benefits as a veteran under federal and state laws as a result of the issuance of an under other than honorable conditions discharge

	e.  His immediate commander recommended separation from the service and a waiver of further rehabilitative efforts, because a rehabilitative transfer would not be in the best interest of the Army.  His recommendation to the approving authority did not include a recommended character of service.  

	f.  The separation authority approved the applicant’s discharge on 17 April 1992 and directed that he be furnished a general discharge certificate.

	g.  He was discharged on 29 April 1992.  His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 13 for unsatisfactory performance, with a characterization of service as under honorable conditions (general).  He completed 2 years, 8 months and 5 days of active net service during this period.

   h.  The applicant applied to the Army Discharge Review Board for an upgrade of discharge; however, on 9 June 1995, the Board notified the applicant that after careful review, he was properly discharged and his request was denied.

5.  By regulation (AR 635-200), a Soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of Soldiers separated under Chapter 13 of AR 635-200, will be characterized as honorable or under honorable conditions as warranted by their military record.

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 and exhibits 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 was discharged for unsatisfactorily performance, which was within the authority of his commanding officials, and was provided an under honorable conditions (General) characterization of service.  Based upon the misconduct and the fact that the applicant already received a general discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service.

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 to amend the decision of the ABCMR set forth in Docket Number AR20060009849 on 5 February 2007.
	 
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.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	a.  Paragraph 3-7a (Honorable discharge), states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 

	b.  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.  

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)	 AR20170018062


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