ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20180010964


APPLICANT REQUESTS: upgrade of his general, under honorable conditions to honorable and a replacement copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 that he would like his discharge of general under honorable conditions changed to honorable.  He further states that as a young Soldier and being put under new situations regularly, he feels that some of his counseling statements were unfair to the situation at hand.  The counseling statements only show one person’s opinion and his reasoning were not documented or addressed.  He would like the Board to reconsider due to his situation at the time of the counseling statements.  He believes his side of the situation is as important as the noncommissioned officer who wrote the counseling statements.  He also requests a replacement copy of his DD Form 214.

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

	a.  He enlisted in the Regular Army (RA) on 23 February 1989. 

	b.  The applicant received numerous negative counseling between 6 January 1991 and 2 July 1991, for many different events of misconduct. 

	c.  On 2 January 1991, the applicant received an administrative elimination form notifying him of his immediate commander’s intent to initiate separation under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel) chapter 13, paragraph 2 for unsatisfactory performance with a general characterization of service.

	d.  On 13 February 1991, the applicant received a counseling for suspension of check privileges due to return checks received by the check control offices on Pioneer Kaserne, Hanau Germany.

	e.  On 7 March 1991, the applicant received a letter from the Army Air force Exchange (AAFES) to pay for dishonored checks that were cashed by him or his dependent.

	f.  On 13 December 1991, the applicant’s immediate commander recommended separation under the provisions of AR 635-200 chapter 13, paragraph 2 for unsatisfactory performance with an under other than honorable discharge.

	g.  On 13 December 1991, the applicant acknowledge receipt of the commander’s notification.  He waived his right to consult with counsel concerning election of rights of the proposed administrative charges.  He submitted his election of rights to his immediate commander affirming:

* receipt of notification of separation under AR 635-200, Chapter 13-2 for unsatisfactory performance
* right to counsel prior to submitting election of rights
* right to submit a rebuttal in seven days

	h.  On 16 December 1991, the applicant completed his election of rights affirming that:

* He understood his rights and has been advised by consulting counsel of the basis for the contemplated action to separate him for unsatisfactory performance
* He neither waived or requested consideration of his case before an administrative board
* He did not submit statements on his behalf
* Requested representation by military counsel
* Understood that he may encounter substantial prejudice in civilian life if a general discharge is issued to him
* He may be ineligible to enlist/reenlist in the Army 2 years after discharge

	i.  The applicant was discharged on 23 January 1992.  His DD Form 214 shows that he was discharged under the provisions of AR 625-200, chapter 13-2 for unsatisfactory performance with a general, under honorable conditions discharge.  He completed 2 years, 11 months and 1 day of active duty service.
	
	j.  The Army Discharge Review Board (ADRB) denied his request for a change to his character of service on 24 April 1995.

4.  By regulation (AR 635-200), chapter 13 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

5.  By regulation (AR 635-5), for Block 28 (Narrative Reason for Separation) of the DD Form 214, enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority.

6.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the failure of the applicant to learn and correct deficiencies from the multiple counseling statements provided by the commend, as well as the applicant already receiving an Under Honorable Conditions (General) discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s 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:

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 (AR) 635-200 (Personnel Separations-Enlisted Personnel) in effect at the time, provides for the separation of enlisted personnel.

	a.  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.  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

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

3.  AR 635-5 (Separation Documents) DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty).will be issued to provide missing information or to correct any information.  Block 28 (narrative reason for separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority “DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) will be issued to provide missing information.”  DD Form 215 will be issued when the missing information becomes available.

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.



ABCMR Record of Proceedings (cont)	 AR20180010964
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