ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20180017009 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with self-authored statement dated 1 November 2018 * DA Form 2A (Personnel Qualification Record – Part I) * DA Form 2-1 (Personnel Qualification Record – Part II) * Weight Control Program memorandum, dated 24 June 1991 * four DD Forms 5500-R (Body Fat Content Worksheet), with various dates * three DA Forms 4856 (General Counseling Form), with various dates * DA Form 705 (Army Physical Fitness Test Scorecard), with various dates * Pages 2 and 3 of the Commander’s notification of intent to separate, undated * Soldiers acknowledgement of the commanders intent to separate, dated 22 April 1992 * Commander’s formal recommendation for separation, dated 22 April 1992 * Memorandum requesting legal administrative review of the recommendation for separation, dated 8 May 1992 * Memorandum finding separation administratively correct, dated 14 May 1992 * Separation Authority Approval, dated 22 May 1992 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 3 June 1992 * Orders Number 97-037-002, issued by Headquarters, U.S. Army Reserve Command (USARC), Atlanta, GA on 6 February 1997 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 states he had his discharge reviewed and it was changed to honorable but he cannot find the paperwork that indicates it was changed to honorable. 3. The applicant enlisted in the Regular Army on 16 December 1988. 4. The applicant’s DA Form 2-1 shows he deployed to Saudi Arabia from on or about 19 October 1990 through on or about 16 April 1991. He was credited with serving in the Defense of Saudi Arabia and the Liberation and Defense of Kuwait campaigns. 5. The applicant underwent a medical examination on 8 January 1992, which, among other things, showed he was qualified for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to being 47 pounds over the authorized weight. 6. The applicant's commander notified the applicant that he was initiating actions to discharge him under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance prior to his expiration term of service (ETS) date. 7. The applicant consulted with counsel on 22 April 1992 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. He was further advised of his right; to be represented by counsel; to obtain documents to be presented to the separation authority; to waive any of these rights; to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and to submit statements in his own behalf, he in effect made the following statement: a. He was writing concerning the actions of his commander, who recommended he receive a general discharge. He believed he did not deserve such a discharge. The commander judged his duty performance, which cannot be backed up by anyone in his current or previous chains of command. The commander's statements made him look like a low caliber Soldier. He was concerned with his family’s welfare and his future after the military. He intended to prove he was an outstanding Soldier/worker who deserved an honorable discharge. b. He came to the unit on 25 July 1989 as the only [military occupational specialty (MOS)] 52D (Generator Mechanic) in the motor pool, and became responsible for 29 pieces of equipment. He performed organizational level maintenance and was able to bring the equipment up before a Command Inspection. He received excellent ratings and never hesitated to help with [MOS] 63B (Light Wheeled Vehicle Mechanic) work. In preparation for Operations Desert Shield/Desert Storm, he again helped with 63B work as well as fixing his own equipment. He was assigned to Task Force "Scorpion," where he performed D.S. (direct support) level work supporting Patriot firing batteries and Hawk batteries as well. He maintained a high morale despite being separated from his unit. He was given great responsibilities outside his regular MOS. He was in charge of operating a wrecker and ventured on many recovery missions. c. After returning from Saudi Arabia, he was assigned to SFC B___, who never complained about his duty performance or military appearance. He has never had any derogative counseling or Article 15s in his military career. He felt he deserved an honorable discharge. He was misjudged by someone who had no awareness of his duty performance. He understood being chaptered but didn’t feel it should be the same category as someone who had substance abuse or misconduct. 8. The applicant's immediate commander formerly recommended the applicant's separation on 22 April 1992, under the provisions of Army Regulation 635-200, Chapter 13, based on his failure of two record Army Physical Fitness Tests (APFT) and his failure to make satisfactory progress in the weight control program. 9. The applicant’s separation packet was forwarded to the 11th Air Defense Artillery Brigade Legal Office for administrative review on 8 May 1992. The action was subsequently reviewed and found administratively correct on 14 May 1992. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's separation on 22 May 1992, by reason of unsatisfactory performance, and directed that his service be characterized as general, under honorable conditions. He also ordered the applicant to be transferred to the Individual Ready Reserves (IRR) to complete his statutory military obligation. 11. The applicant was released from active duty on 3 June 1992, under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. His DD Form 214 shows in: * Item 9 (Command To Which Transferred), he was assigned to the U.S. Army Reserve Control Group (Reinforcement) * Item 12c (Net Active Service This Period), he was credited with completing 3 years, 3 months, and 13 days of creditable service * Item 12f (Foreign Service), he was credited with completing 5 months and 28 days of creditable service * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), he was awarded or authorized the: * National Defense Service Medal * Southwest Asia Service Medal with 3 bronze service stars * Army Service Ribbon * Kuwait Liberation Medal * Valorous Unit Award * Item 24 (Character of Service), his service was characterized as "Under Honorable Conditions (General)" * Item 28 (Narrative Reason for Separation), he was separated for unsatisfactory performance 12. The applicant provides copies of his service records, which include his discharge packet and DD Form 214 and his honorable discharge orders from the USAR. 13. The Board should consider the applicant's request, his statement, and complete service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and found the statement, the applicant’s wartime service, and honorable post-service in the USAR to be compelling. The Board found that the wartime service and post-service honorable conduct mitigated the poor performance that resulted in the discharge. Therefore, the Board found sufficient evidence to upgrade the discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s discharge characterization on his DD Form 214 to “Honorable.” 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): N/A 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 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. 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. b. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely c. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180017009 5 1