ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:
BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20180009525

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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 is trying to join United Services Automobile Association (USAA) and receive other benefits that require his discharge to read honorable.

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

   a. He enlisted in the Regular Army on 28 May 1987.

b. He served in Saudi Arabia from 18 October 1990 to 28 March 1991.

c. He received nonjudicial (NJP) punishment on/for:

* 20 February 1992, being absent without leave (AWOL) from 15 February 1992 to 17 February 1992; his punishment included reduction to private first class/E-3, suspended for 90 days
* 25 February 1992, breaking restriction; his suspension of reduction to private first class/E-3 was vacated
* 26 March 1992, being AWOL from 1 March 1992 to 20 March 1992; his punishment included reduction to private/E-1
* 

   d. On 27 March 1992, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for commission of a serious offense. The specific reasons for his proposed recommendation were: he went AWOL from 1 March 1992 to 20 March 1992 and he had been counseled concerning his failure to report, failure to follow instructions and his undependability. The applicant acknowledged receipt of the notification of separation action on the same day.

   e. The service record is void of further documentation concerning the initiation of separation for the applicant.

   f. On 30 March 1992, a staff action vetted through the 212th Field Artillery Brigade leadership noted the unit and battalion commanders recommended the applicant be discharged under the provisions of Chapter 14, paragraph 14-12c for commission of a serious offense, with the issuance of a General Discharge Certificate.

g. The service record is void of the separation authority approval action.

   h. On 9 April 1992, he was discharged from active duty with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 9 months, and 23 days of active service with 19 days of lost time. It also shows he was awarded or authorized:

* Army Service Ribbon
* Army Achievement Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Southwest Asia Service Medal with two bronze service stars
* Sharpshooter 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, action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.

6. 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.
1. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined partial relief was warranted. Based upon the pattern of misconduct which led to the applicant’s separation, as well as the applicant already receiving an Under Honorable Conditions (General) discharge, the Board found insufficient evidence of an error or injustice which would warrant making a change to the characterization of service.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommends that change be completed to more accurately depict the military service of the applicant.

Additionally, the Board found that the current narrative reason for separation reflected on the applicant’s DD Form 214 inaccurately depicted for the separation. For that reason, the Board recommended changing the narrative reason for separation to “Misconduct”.

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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 28 May 1987 until 23 May 1990.”
2. Additionally, the Board determined that the current narrative reason for separation inaccurately reflected the reason for the applicant’s separation. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 by changing Item 28 of the DD Form to read “Misconduct”.
3. However, the Board further also 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 upgrading the characterization of his discharge.
9/23/2019

 X	
CHAIRPERSON
Signed by: 

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.
1. 



   a. Paragraph 3-7a (Honorable Discharge) 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 (General Discharge) 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.

d. Chapter 14 of the regulation states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.

3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment).

4. 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//