ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20180013693


APPLICANT REQUESTS:  upgrade his general discharge 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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  However, the Army Board for Correction of Military Records (ABCMR) 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's states, in effect, he was discharged under the premise he would receive an honorable discharge; they gave him a general discharge instead.

3.  The applicant's service records show:

	a.  He enlisted into the Texas Army National Guard (TXARNG) on 13 September 1989; as part of his enlistment, he agreed to attend military occupational specialty (MOS) training for 45T (Bradley Fighting Vehicle System Turret Mechanic), with 91A (Medical Corpsman) as an alternative.  

	b.  On 12 October 1989, he was ordered to initial active duty for training; he first participated in basic combat training at Fort Knox, KY, and then remained for advanced individual training (AIT) in MOS 45T.  On 2 February 1990, the Training and Doctrine Command (TRADOC) Liaison noncommissioned officer (NCO) requested the applicant's transfer to Fort Sam Houston, TX to attend MOS 91A AIT.  The TRADOC Liaison NCO stated, in effect, the applicant was dropped from MOS 45T AIT because he had missed too much training time due to a medical profile.  Another 45T class was not scheduled until March, the applicant's TXARNG unit needed a Soldier trained as a 91A, and the applicant wanted to attend 91A AIT.  Orders reassigned the applicant to 91A AIT at Fort Sam Houston; he arrived on or about 1 March 1990.  
	c.  He accepted nonjudicial punishment on two occasions:

* 9 April 1990 – failing to go to his appointed place of duty at the time prescribed; punishment included 14 days restriction and extra duty
* 1 May 1990 – breaking the restriction imposed in the previous NJP

	d.  On 4 May 1990, the applicant's class advisor, company commander, and program/course director all requested the applicant's relief from his AIT class due to a pending separation action; the Dean, Medical Field Service School approved the request on behalf of the Commandant.

	e.  On 30 May 1990, the applicant's AIT commander advised him of his intent to separate the applicant under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  The commander initiated this action because the applicant had been a consistent disciplinary problem; he lacked the maturity and motivation to become a productive member of the Armed Forces.  The commander further stated he was recommending the applicant for a general under honorable conditions discharge certificate; the separation authority was not bound by that recommendation.

	f.  On 30 May 1990, the applicant acknowledged he had been afforded the opportunity to consult with counsel; he declined that opportunity.  He went on to affirm he understood the basis of his commander's proposed separation action, as well as the rights available to him and the effects of waiving those rights.  He elected not to submit a statement in his own behalf.

	g.  On 30 May 1990, the commander submitted his recommendation to the separation authority; he indicated the applicant was a consistent discipline problem who had been counseled 13 times and was twice administered NJP.  The applicant was given every opportunity to improve his behavior; he failed to show progress.  The commander did not specifically recommend either an under honorable conditions (general) or honorable character of service.

	h.  On 8 June 1990, the separation authority approved the commander's recommendation and directed the applicant's relief from active duty (REFRAD) under honorable conditions (general); he was REFRAD accordingly on 15 June 1990.  The applicant's DD Form 214 shows he completed 8 months and 4 days of net active duty service; he was awarded or authorized two marksmanship qualification badges.

4.  The applicant asserts, in effect, he thought he was receiving an honorable character of service, but his chain of command separated him under honorable conditions instead.  Per AR 635-200, commanders were required to initiate separation action when Soldiers demonstrated they would not sufficiently develop to adequately participate in further training and/or become a satisfactory Soldier.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.

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 short term of service prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge 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 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  

2.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations.

	a.  Paragraph 3-7a stated an honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate.  Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time.  It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor.

	b.  Under chapter 13, commanders were required to initiate separation action for unsatisfactory performance when Soldiers demonstrated they would not develop sufficiently to become a satisfactory Soldier, based on inaptitude, displaying apathy or defective attitudes, and/or being unable to expend effort constructively.  Soldiers separated under this provision were furnished either an honorable or general discharge under honorable conditions.  

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 on the basis of 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)	 AR20180013693


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