ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180004435


APPLICANT REQUESTS:  an upgrade to his under honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* congressional correspondence
* 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 that over the past 37 years, he has had no involvement with law enforcement.  He feels that because of his record, he deserves an honorable discharge.  He applied with the Army Discharge Review Board (ADRB) and was denied, so he waited to apply again with more evidence of his good conduct.  

3.  The applicant provides a privacy release form that was sent to his Senator and a copy of a detailed self-authored statement, sent to the Governor’s inbox describing the incident which led to his discharge.  

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

	a.  He enlisted in the Regular Army on 18 August 1987.

	b.  He served in Germany from 22 January 1988 until 20 January 1990.

	c. On 24 September 1990, he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty at the prescribed time on 20 September 1990.  

	d.  On 18 December 1990, he accepted NJP under the provisions of Article 15, UCMJ, for failing to be at his appointed place of duty on 5 December 1990. 

	e.  On 25 February 1991, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations) Chapter 13, for unsatisfactory performance.  The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf.

	f.  On 27 February 1991, 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 but he understood the following:

* he may expect to encounter substantial prejudice in the civilian life if a general discharge, under honorable conditions is issued to him
* as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading, but realizes that an act of consideration by either boards does not imply that his discharge will be upgraded

	g.  The applicants commander initiated action against him, under the provisions of AR 635-200, chapter 13, and stated the reason for this action as him having a lack of improvement and desire to improve duty performance.

	h.  Consistent with the chain of command’s recommendation, the separating authority approved the chapter 13 discharge and issued a general, under honorable conditions discharge.  
  
	i.  The applicant was discharged on 16 April 1991, under the provisions of AR 635-200, Chapter 13, due to unsatisfactory performance and was furnished with a general discharge under honorable conditions characterization.  His DD Form 214 (Certificate of Release from Active Duty) shows he completed 3 years, 7 months and 28 days of net active service with no lost time.  He was awarded or authorized the:

* Army Service Ribbon
* Overseas Service Ribbon
* National Defense Service Medal
* Good Conduct Medal

5.  On 4 February 1997, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing, but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge. 

6.  By regulation, (AR 635-200), commanders will separate a soldier for unsatisfactory performance when it is clearly established that in the commander’s judgement, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier or the seriousness of the circumstances is such that the soldier’s retention would have an adverse impact on military discipline, good order, and morale.

7.  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 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 after a pattern of misconduct, failed to respond to corrective measures by the command 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.

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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 3-7a (Honorable) provided that an honorable 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) provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.  It will not be issued to soldiers 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 (Separation for Unsatisfactory Performance) states that a soldier may be separated per this chapter when it is determined that he or she is unqualified for further military services because of unsatisfactory performance.
   
   d.  Paragraph 13-2 states that commanders will separate a soldier for unsatisfactory performance when it is clearly established that in the commander’s judgement, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier or the seriousness of the circumstances is such that the soldier’s retention would have an adverse impact on military discipline, good order, and morale.

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)	 AR20180004435


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