ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20180016161 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) 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 his discharge was inequitable because it was based on one isolate incident in 29 months of service with no other adverse actions. He served honorably and he would like his military records to reflect the same. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 9 May 1989. b. He accepted nonjudicial punishment under the provisions of Article 15 on: * 2 March 1990, for disobeying a lawful order * 25 June 1991, for dishonored checks c. He underwent a medical examination on 23 July 1991 and the examiner did not check block 77, as qualified/not qualified for separation. d. He received 10 counseling statements from 14 December 1989 to 23 September 1991, for a variety of infractions including failure to follow orders, marginal performance, promotion, failure to be at his appointed place of duty, failure to pass physical fitness test, weight control, dishonored checks, and other infractions. e. On 27 September 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unsatisfactory performance. The applicant received a company grade article 15 on 25 June 1991 for writing bad checks. He was counselled for failing to be at his appointed place of duty, disobeying orders from noncommissioned officers, and for failing a PT test. His ability to perform duties effectively, including potential for advancement or leadership, is unlikely. His behavior was prejudicial to the good order and discipline of the Army. His discharge was in the best interests of the Army. He recommended he receive a general discharge. f. He acknowledged receipt of the commander's intent to separate him the provision of AR 635-200, chapter 13, for unsatisfactory performance. He waived his rights to consult with legal counsel or military counsel of his own choice, or civilian counsel at his own expense 30 September 1981. He acknowledged: * the right to submit a written statement in his own behalf, the applicant did not submit a statement * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was 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 an under other than honorable conditions discharge g. The unit commander recommended separation from the service and a waiver of further rehabilitative efforts, because a rehabilitative transfer would not be in the best interests of the Army. His recommendation to the approving authority did not include a recommended character of service. h. The separation authority approved the applicant’s discharge on 30 September 1991, under the provisions of AR 635-200, chapter 13, separation for unsatisfactory performance and directed that he be furnished a general discharge certificate. i. He was discharged on 15 November 1991. His DD Form 214 showed he was discharged under the provisions of chapter 13 of AR 635-200 for unsatisfactory performance, with a characterization of service as under honorable conditions (general). He completed 2 years, 6 months, and 7 days active service during this period. 4. By regulation (AR635-200), a Soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of Soldiers separated under chapter 13 of AR 635-200, will be characterized as honorable or under honorable conditions as warranted by their military record. 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 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 completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, 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 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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 13, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. a. Paragraph 3-7a (Honorable discharge), states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 3-7b (General discharge), states 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. 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) AR20180016161 3 1