ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20180004248 APPLICANT REQUESTS: * an upgrade of his under honorable conditions (General) discharge * add the Southwest Asia Service Military Ribbon APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored Statement 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 wishes his discharge to be changed to honorable and he would also like the Southwest Asia Service Military Ribbon added to his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. A review of the applicant’s service record shows: a. He enlisted in the Army Reserves on 23 August 1990 and did an immediate reenlistment into the Regular Army on 24 August 1990. b. He served in Germany 14 July 1991 to 15 July 1992. c. His DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 5 an entry was initially made adding Saudi Arabia, but was later crossed out. He authenticated the DA Form 2-1 as late as 6 August 1992, concurring with its correctness. His record is also void of documentation showing that the applicant was stationed in Saudi Arabia. d. He accepted non-judicial punishment (NJP) for absenting himself from his unit from 14 March 1994 to 16 March 1994; his punishment consisted of reduction to private/E-2. e. On 11 May 1994, he was barred from reenlistment, as a result of the NJP. f. On 22 June 1994, his 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, in effect at the time, for FTR’s and disrespect to NCO’s. g. On 22 June 1994, the applicant acknowledged receipt of the commander’s intent to separate him, and subsequently, consulted with legal counsel. He was advised of: * the rights available to him and the effect of waiving said rights. * he understood a general discharge was the least favorable characterization of service he would receive. * he could expect to encounter substantial prejudice in civilian life if the general discharge under honorable conditions was issued to him * he understood if he received a discharge certificate or characterization which is less than honorable, he may apply to the Army Discharge Review Board for correction of military records for upgrading * an act of consideration by either board does not imply the discharge would be upgrade. * he would be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge. h. The separation authority approved his discharge under the provisions of AR 635- 200, Chapter 13, by reason of unsatisfactory performance and ordered his service be characterized as under honorable conditions (general). i. He was discharged from active duty on 5 August 1994 with a general, under honorable conditions characterization of service. His DD 214 shows he completed of 3 years, 10 months and 29 days of net active service. It further shows he was awarded or authorized the: * Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Qualification Badge with Rifle Bar 4. By regulation, action will be taken to separate a member when it is determined that he is unqualified for further military service because of unsatisfactory performance. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 13. 5. In reaching its determination, the Board can consider the applicants 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 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 did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for multiple UCMJ offenses and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Finally, the Board found his record void of evidence that shows he served in Southwest Asia. 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 Separation – Enlisted Personnel), in effect at the time sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states a discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 of this regulation provides action will be taken to separate an individual when it is determined he is unqualified for further military service because of unsatisfactory performance. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004248 4 1