ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20180006860


APPLICANT REQUESTS:  an upgrade of his general discharge

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 he would like his general discharge upgraded to an honorable.  He failed his Physical Training (PT) test which was unsatisfactory performance, and he regrets not passing his PT test ever since.  He pleads with the Board to consider his request for an upgrade to an honorable discharge. 

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

a. He enlisted in the Regular Army on 20 November 1991.

b. He accepted nonjudicial punishment on/for:

* 14 October 1992., for failure to be at his appointed place of duty 
* 13 November 1992, for wrongfully violating a lawful general regulation, (his record is void of punishment)

c. On 18 February 1993, his immediate commander notified him that he was 
initiating a separation action against him Under the Provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13-2a (1), unsatisfactory performance.  The reason for the proposed action was for several PT test failures and substandard duty performance. 


d. On 22 February 1993, the applicant consulted with legal counsel who advised 
him of the basis for the contemplated action to separate him for unsatisfactory performance and its effects of the rights available to him and the effect of any action taken by him and/or waiving his rights.  He also acknowledged:

* 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. Consistent with the chain of command’s recommendations, on 24 February 1993,
the separation authority approved the discharge and directed he be discharged with a character of service as General Under Honorable Conditions.

   f. The applicant was discharged on 10 March 1993, under AR 635-200, Chapter 13-2a (1), unsatisfactory performance.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 3 months and 21 days of net active service.  He was awarded or authorized the: 

* Army Service Ribbon
* Army Lapel Button
* National Defense Service Medal
* Marksmanship Qualification Badge with Rifle Bar (M-16) 

4.  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. 

5.  By regulation, commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  

6.  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.  After reviewing the complete record, the board determined that the applicant was discharged for more than failing an APFT.  The separation notification to the applicant states he was being separated for APFT failures and substandard duty performance, which included some misconduct in the record that may have impacted his characterization of service at the time of separation.  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), sets forth the basic authority for the separation of enlisted personnel.
   a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 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.
   
   c.  Chapter 13 of that regulation provides, in pertinent part, if it is clearly established that the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  Further stating it is likely that the Solider will be a disruptive influence in present or future duty assignments and his ability 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)	 AR20180006860


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