ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20180011510


APPLICANT REQUESTS:  his character of service be upgraded to honorable  

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 served his country honorably until his discharge and his record should reflect the same. 

3.  The applicant's service record shows:

a. He entered the Regular Army on 2 December 1993.

   b. On 1 June 1994, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 11, Entry Level Status for Army Physical Fitness Test (APFT) failure.  

   c. The applicant acknowledged receipt of the commander's intent to separate him on 1 June 1994.  He waived consulting legal counsel and representation by military counsel and civilian counsel at no expense to the Government.  He was advised of the importance of consulting with legal counsel, and the consequences of waiving that right.  He acknowledged he:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were 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 a discharge under other than honorable conditions
* 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

   d. Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of AR 635-200, Chapter 11.  His chain of command recommended approval.

   e. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge under the provisions of AR 635-200, Chapter 11.

   f. The applicant was discharged on 10 June 1994.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 11, Entry Level performance and Conduct, Separation Code JGA, with a character of service as uncharacterized.  He completed 6 months and 10 day of net active service.

4.  The applicant's record is void of evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15 year statute of limitations.

5.  AR 635-200, Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days.  It further states the character of service for members separated under the provisions of chapter 11 will be uncharacterized.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the facts and circumstances in the case, specifically the short term of service and the failure of the applicant to pass three APFTs, the Board concluded that the characterization of service received at the time of discharge was appropriate.

However, based upon the separation not being related to misconduct, the Board determined to grant some clemency in order to assist the applicant in any future endeavors and to prevent any possible negative connotation drawn by changing the narrative reason for separation, the separation code and the separation authority. 

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 reissuing the applicant a DD Form 214 showing:
* narrative reason for separation as “Miscellaneous/General”
* separation code as “JND”
* separation authority as “AR 635-200, para 5-14”
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 upgrading the characterization of his discharge.
	 
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.  AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.  

a. Paragraph 3-7a states 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 states 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 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applied to individuals who had demonstrated they were not qualified for retention because they:

* could not adapt socially or emotionally to military life
* lacked the aptitude, ability, motivation, or self-discipline for military service
* demonstrated characteristics not compatible with satisfactory continued service

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)	 AR20180011510


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