ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  4 September 2019

	DOCKET NUMBER:  AR20180004445


APPLICANT REQUESTS:  an upgrade to his general, under honorable conditions discharge to an honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 after serving and receiving the Armed Forces Expeditionary Medal for his service in Operation Urgent Fury, President Reagan implemented new weight guidelines.  He was discharged for being 10 pounds overweight.  He states he was a good Soldier and served with pride and honor.  He believed his discharge was unjust and he would like his record to reflect his service and not his weight.

3.  A review of the applicant’s record shows:

a. He enlisted in the Regular Army on 26 August 1982.

b. He served overseas in Grenada from 1 December 1983 to 13 December 1983.

c. On 20 March 1984, the applicant’s immediate commander notified him that he is 
considering initiation of separation action against him in accordance with chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Separations) unsatisfactory performance and specifically, his inability to conform to the military weight standards set out in AR 600-9 (The Army Weight Control Program).  The commander advised him of his rights in accordance with paragraph 20, AR 600-9, and provided him an opportunity to submit a statement on his behalf.

d. He acknowledged the letter of notification from his commander by signing it.  He 
declined to submit a written statement in response to the chapter 13 action against him.

e. The applicant’s immediate commander recommended rehabilitation requirements
be waived under the provisions of para 1-18d (1)b, AR 635-200.

f. On 26 March 1984, following a history of exceeding weight control standards, the
applicant’s immediate commander advised him of his intent to recommend him for administrative separation from the Army under chapter 13, paragraph 13-2a (2), 
AR 635-200 (Unsatisfactory Performance).

g. On 26 March 1984, the applicant acknowledged notification of the proposed 
separation action and subsequently consulted with legal counsel.  He acknowledged:

* he had been advised of the basis for the contemplated separation action under the provisions of chapter 13 of AR 635-200
* he had been advised of the effect on future enlistments in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him
* he may apply to the Army Discharge Review Board or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge
* he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life

	h.  Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to unsatisfactory performance.  He cited the applicant’s inability to meet body fat standards after application of the procedures in AR 600-9.

	i  The separation authority approved his separation on 30 March 1984, and directed the applicant to receive a general, under honorable conditions character of service discharge.

	j.  On 20 June 1984, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 13, paragraph 13-2a (2), for failure to meet body fat standards, and issued a general, under honorable conditions discharge characterization.  His DD Form 214 shows he completed 1 year, 9 months, and 25 days of active service with no lost time.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Badge Hand Grenade
* Armed Forces Expeditionary
	k.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

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 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 unsatisfactory performance 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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 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.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180004445


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