ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20180000211 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge 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 his discharge should be upgraded from general, under honorable conditions, to honorable. He was separated from the military for failing to meet body fat standards and all other aspects of his military service was exemplary. He recalls when he was being measured for height and weight, his height was measured incorrectly. He feels that this incorrect measurement is responsible for him being separated from the military for failing to meet body fat standards. The current characterization of his discharge does not represent the characterization of his military service and it negatively affects his state’s retirement benefits. 3. A review of the applicant’s service record shows: a. Having had prior service, he reenlisted in the Regular Army on 3 March 1979. b. He received discharge orders with an honorable discharge effective 2 March 1979 for the purpose of immediate reenlistment on 3 March 1979, as a specialist/E-4 for a period of 3 years. c. He reenlisted again on 4 December 1981, as a specialist/E-4 for a period of 3 years. d. He served overseas in Germany from 3 March 1977 until 5 May 1979 and from 14 July 1980 until 3 March 1982. e. On 20 September 1983, he was placed on the overweight program for being 17 pounds overweight and was also was suspended for any favorable personnel actions on 23 September 1983. f. From 14 March to 24 March 1984, he received three counseling statements for the following: * being 37 pounds overweight * failing four consecutive physical fitness tests * notification of what characterization a chapter 13 would result in g. The applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of chapter 13 of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations) for unsatisfactory performance. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. j. The applicant signed the acknowledgement of notification, waived his rights to counsel and waived the consideration of his case by an administrative separation board. He did not provide a statement on his behalf. k. On 18 April 1984, the applicant was recommended for separation by his commander and his chain of command concurred. The separation authority approved his separation on 20 April 1984, and directed the applicant to receive a general, under honorable conditions character of service discharge. l. Although the applicant’s DD Form 214 shows that he was discharged under AR 635-200, chapter 11, his separation packet says otherwise. On 13 May 1984, the applicant was discharged under the provisions of AR 635-200, chapter 13, paragraph 13-2a, unsatisfactory performance, and issued a general, under honorable conditions discharge. His DD Form 214 shows that he completed 5 years, 2 months and 13 days of active service this period and 2 years, 8 months and 29 days of prior active service with no lost time. It also shows he was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Good Conduct Medal (2nd Award) 4. 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. 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, the Board determined that relief was not warranted. Based upon the documentary evidence submitted by the applicant and found within the military service record, as well as the regulatory guidance surrounding the circumstances of the discharge, the Board found insufficient evidence of an error or injustice which would warrant making a change to the characterization of service. However, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended making that change to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 3 March 1979 until 3 December 1981.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 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 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. ABCMR Record of Proceedings (cont) AR20180000211 4 1