ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 August 2019

	DOCKET NUMBER:  AR20180006885


APPLICANT REQUESTS: 

* Item 25 (Separation Authority), changed from Self-Terminating Order #85-3 (73D), DTD 05 May 1992 to appropriate separation authority
* Item 26 (Separation Code), on his DD Form 214 (Certificate of Release or Discharge from Active Duty) changed from “MCD” to “MBD”
* Item 28 (Narrative Reason for Separation) of his DD Form 214 changed from “Reserve Component (RC) Personnel upon Completion of Military Occupational Specialty (MOS) Training” to hardship

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, his separation was due to a hardship, he was discharged to return home to care for his parents.  His mother (71) was having a triple bypass surgery and his father (70) who had a shoulder injury and Alzheimer’s was unable to care for her in his condition.  He states there was no one else to help.  He was applying for a Certificate of Eligibility for a Department of Veterans Affairs (VA) home loan, and was denied due to “incorrect” information on his DD Form 214.

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

	a.  He enlisted in to the Regular Army (RA) on 5 May 1992.

	b.  His immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Separation for Unsatisfactory Performance), based on his unsatisfactory performance (memorandum not dated).  He recommended an honorable characterization of service.

	c.  The applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 13.  He subsequently consulted with legal counsel on 19 November 1992 and acknowledged:

* the basis for the contemplated action to separate him for unsatisfactory performance, its effects, and the rights available to him
* he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge

	d.  Subsequent to the applicant's acknowledgement, the immediate commander formally initiated separation action against the applicant under the provisions of 
AR 635-200, chapter 13 for:

* Academic failure
* Lack of motivation
* Aptitude and self-discipline
* Apathy towards the Army

	e.  The approval authority on 1 December 1992, following a legal review for legal sufficiency approved the recommendation for separation under the provisions of 
AR 635-200, chapter 13, with the issuance of an honorable characterization of service.

	f.  He was released from active duty (REFRAD) on 1 December 1992.  His DD Form 214 shows he was REFRAD under the provisions of a Self-Terminating Order #85-3 (73D), DTD 05 May 1992 with an honorable characterization of service.  He completed 6 months, and 27 days of active duty service.  It also shows in:

* item 23 (Type of Separation), Release from Active Duty
* item 24 (Character of Service), Honorable
* item 25 (Separation Authority), Self-Terminating Order #85-3 (73D), 
DTD 05 May 92
* item 26 (Separation Code), MCD (RC personnel upon completion of MOS training or early release of RC personnel)
* item 27 (Reentry Code), NA
* item 28 (Narrative Reason for Separation), RC Personnel upon Completion
of MOS Training

	g.  On 15 June 1993, a DD Form 215 (Correction to DD Form 214), corrected 
item 23 (Type of Separation) to read discharge.

4.  By regulation (AR 635-5-1), there is no record of the separation code “MBD” which the applicant is requesting.  However, separation code “MDB” is utilized for hardship in accordance with AR 635-200, paragraph 6-3b.

5.  By regulation (AR 635-200), paragraph 6-3b states, hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

6.  By regulation (AR 635-5), narrative reason for separation is based on the regulatory or other authority.

7.  By regulation (AR 600-8-105), self–terminating orders, are orders that direct a Soldier or unit to perform duty for a specific time and also direct that the Soldier or unit will be released automatically on completion of the stated period of duty. 

8.  By regulation, separations under the provisions of AR 635-200, chapter 13 establishes policy that Soldiers may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 

9.  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 found some relief was warranted.  The applicant’s contentions were carefully considered.  His documents recording his separation action clearly shows the authority for his separation was AR 635-200, chapter 13, for Unsatisfactory Performance; however, that was not listed on his DD Form 214.  As he was in the Regular Army during that period of service, regulatory guidance shows he was not provided the appropriate separation and reentry codes as those provided were strictly for use with Reserve Component members.  The Board agreed JHJ is the corresponding separation code for an unsatisfactory performance, and the reentry code should show “3” as he may request a waiver for enlisting back into military service.


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 amending his DD Form 214 for the period ending 1 December 1992 by:

     a.  deleting the entries in blocks 25, 25, 27 and 28

     b.  adding the following:

* block 25 – AR 635-200, Chapter 13
* block 26 – JHJ
* block 27 – 3
* block 28 – Unsatisfactory Performance

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 changing his DD Form 214 to show he was discharged for a hardship and received a separation code of MBD.
	 
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) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons.

	a.  Chapter 13 establishes policy that Soldiers may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

	b. 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.

	c.  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.

3.  AR 600-8-105 (Military Orders), prescribes the policies and mandated operating tasks for the orders program of the military personnel (MILPER) system.  It establishes standards and provides an operational document in a logical sequence.

4.  AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD)), establishes the use of separation program designator code.  It gives instructions on the use of the SPD codes, arid the authorities and reasons therefore.

5.  AR 635-5 (Personnel Separations – Separation Documents), prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty).

6.  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)	 AR20180006885


5


1