ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20180010680


APPLICANT REQUESTS:  an upgrade to his under honorable conditions (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, the alleged event that led to his discharge came from a pick-up basketball game.  It should not have led to a discharge at all, especially a under honorable conditions discharge.  This event took place in 1996, and it still plays fresh in his mind every day, because it was not fair.  He is asking that the Board make a fair decision.  

3.   The applicant's service record shows:

	a.  He entered the Regular Army on 7 October 1994.

	b.  He accepted nonjudicial punishment (NJP) on/for the following:

* 16 May 1996, for failing to go at the time prescribed to your appointed place of duty
* 25 October 1996, for disrespect in language and deportment toward a noncommissioned officer. 

   c.  On 11 December 1996, his commander notified him he was initiating action to discharge him under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel) Chapter 13 for unsatisfactory performance with a general discharge under honorable conditions.  The commander stated his proposed action was based on the applicant's unsatisfactory duty performance. 

	d.  On 11 December 1996, the applicant indicated he was submitting statements in his behalf.  He also acknowledged he had been advised by consulting counsel of:

* basis for the contemplated action to accomplish his separation for unsatisfactory performance and its effects
* the rights available to him
* the effect of any action taken by him in waiving his rights

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded  

   e.  On 16 December 1996, the applicant's commander recommended he be separated from the Army prior to expiration of his term of service under the provisions of AR 635-200, Chapter 13. 

   f.  Consistent with the chain of command’s recommendation, the separation authority approve the discharge on 16 December 1996 in accordance with AR 635 200, Chapter 13, waived the requirement for a rehabilitative transfer and directed he be discharged with a general discharge under honorable conditions.

   g.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 December 1996, under the provisions of AR 635-200, Chapter 13, Unsatisfactory Performance, Separation Code JHJ, with a character of service as under honorable conditions (General).  He completed 2 years, 2 months and 17 day of net active service.

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.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the reason for the separation action outlined by the commander in the separation notification to the Soldier, the lack of demonstrated remorse by the applicant in his submitted application, and the fact the applicant already received a General Discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service.

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:

As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely
	
	b.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions.

	c.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

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.



ABCMR Record of Proceedings (cont)	 AR20180010680


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