ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20180013275


APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions 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 wants his discharge upgrade so that he may pursue a career within the United States Postal System.  His only unsatisfactory performance was writing bad checks while in Korea.  This was his first time away from home.  He had a hard time making friends, so he used the situation outside the gates of the installation to gain happiness and got caught up in the off duty extracurricular activities of the local nationals and nightlife.  At the time, he was given a choice to remain in country on active duty with some restrictions or go home with a general discharge.  He chose to go home, but he wished he would have stayed to work things out.

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

	a.  He enlisted in to the Regular Army on 2 September 1988.

	b.  His DA Form 2-1 (Personnel Qualification Record) indicates that he served in Korea from 23 January 1989 to 15 September 1989.

	c.  On 14 June 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of willfully disobeying a lawful order.  His punishment consisted in part of reduction to (private) E-1/PVT.

	d.  On 5 July 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of wrongfully uttering a check, without sufficient funds for payment.

	e.  On 8 August 1989, 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), paragraph 13-2 (1) (Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier) based on his unsatisfactory performance. 

	f.  The applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 13.  He successfully consulted with legal counsel on 28 August 1989 and acknowledged on that:

* the basis for the contemplated action to separate him for unsatisfactory performance, under AR 635-200, Chapter 13, its effects, and the rights available to him
* he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge

	g.  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 unsatisfactory performance.

	h.  The approval authority on 7 September 1989, 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 a under honorable conditions characterization of service.

   i.  He was discharged on 20 September 1989.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty under the provisions of AR 635-200, Chapter 13 with a general under honorable conditions characterization of service.  He completed 1 year, and 19 days of active duty service.  He was awarded or authorized the:

* Army Service Ribbon.
* Expert Marksmanship Badge with Hand Grenade Bar
* Sharpshooter Marksmanship Badge with Rifle Bar (M16)
4.  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. 

5.  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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the short term of service completed prior to the misconduct, as well as the applicant already receiving a general dishjarge, the Board concluded that the characterization of service received at the time of separation was appropriate.
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 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.  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)	 AR20180013275


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