ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20180014930 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his honorable 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 he received an Honorable Discharge Certificate in the mid 1990’s. He would like his DD Form 214 to reflect the upgrade. 3. On 27 June 1988, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 4 years. After his enlistment, he completed basic training and training at the Defense Language Institute at Presidio, CA. 4. On 7 February 1990, he was assigned as a student at Goodfellow, Air Force Base, TX, in which a personnel action shows he received nonjudicial punishment (NJP) and was reduced to private one (PV1)/E-1. On 14 November 1990, he was then assigned to one station unit training (OSUT) at Fort Benning, GA. 5. The record shows he received counseling on seven occasions from 26 November 1990 to 13 Dec 1990. 6. On 18 December 1990, the applicant’s immediate commander notified him he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), chapter 13, separation for unsatisfactory performance and advised him of his available rights. a. The applicant acknowledged he had been notified by his consulting counsel of the pending separation action against him and the basis for the contemplated action to separate him for unsatisfactory performance. He elected not to submit statements on his own behalf. b. The immediate commander recommended approval stating the applicant would not develop sufficiently to participate satisfactorily in further training and it was likely he would not become a satisfactory Soldier. 9. The memorandum for the approved separation is not available for review; however, on 18 January 1991, the applicant was released from active duty under the provisions of AR 635-200, chapter 13 for unsatisfactory performance and transferred to a Reserve unit in Saint Louis, MO. His service was characterized as a general discharge. He completed 1 year, 6 months, and 28 days of net active service. His DD Form 214 shows he was awarded or authorized the M-16 Rifle Marksman and Hand Grenade Sharpshooter Marksmanship Qualification Badges. 10. The applicant states he received an Honorable Discharge Certificate in the mid 1990’s. He would like his DD Form 214 to reflect the upgrade. His record shows he enlisted at the age of 17 years old, he received one NJP and seven counseling statements regarding his performance while in a training, and he was discharged while attending OSUT. His available record does not show nor does the applicant provide evidence that he received an Honorable Discharge Certificate. The applicant was released from active duty and transferred to a Reserve unit to fulfill his service obligation. 11. AR 635-200, Chapter 13 was a separation for unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 12. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the counseling statements and reference to NJP in the record as well as the commander’s recommendation and considered the applicant’s statement in light of DoD guidance. The Board determined that the character of service was correct based on the evidence. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 13 established policy and prescribed procedures for separating members for unsatisfactory performance. It stated commanders would separate a Soldier for unsatisfactory performance when it was clearly established that in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; or the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale; and it was likely that the Soldier would be a disruptive influence in present or future duty assignments; and it was likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, was unlikely; and the member meets retention medical standards. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. b. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20180014930 5 1