ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20190004218 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) 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, in effect, his discharge is unjust due to the fact that he was not given the opportunity to receive the help he needed. He was not made aware upon his discharge that there was a procedure in place that he could utilize to contest his unjust discharge. 3. The applicant enlisted in the Regular Army on or about 26 May 1989. 4. The applicant received numerous DA Forms 4856 (General Counseling Form) over the course of one year, between 15 November 1990 and 23 January 1991, for: * unsatisfactory wear of uniform and appearance * missed formation * being absent without leave (AWOL) * being on the overweight program [Army weight control program] * being late to formation * drinking on duty 5. The applicant's commander notified the applicant on 16 February 1991 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsatisfactory performance. The commander cited, as the specific reason for the initiation of separation actions, the applicant's failure to repair (FTR) on numerous occasions, financial problems, and overweight problems, all of which he failed to overcome. 6. The applicant consulted with counsel and was advised of the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200, Chapter 13, and its effects; of the rights available to him; and of the effect of any action taken by him in waiving his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He acknowledged that he would be ineligible to apply for enlistment in the U.S. Army for two years. In a provided statement, he contended: * the separation is unjust due to the alleged unsatisfactory performance * being late to formation was unintentional * his lack of initiative and motivation is protested vigorously and his fellow comrades can attest to his approach and ability to do his job * falling out of a run after coming off of three weeks temporary duty (TDY), he was out of shape * his previous physical fitness test can show he was not out of shape * the series of counseling statements are excessive * he was told he had five days to register his personally own vehicle (POV) so he was not in violation of a direct order * his appearance was improving * he was off duty when he was found with alcohol in the duty area * he is requesting not to be separated but if so, he requests he receive an honorable discharge 7. The applicant's commander formally recommended his separation from service on 25 February 1991, under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. The separation authority approved the recommended discharge and directed that the applicant receive an under honorable conditions (general) discharge. 8. The applicant was discharged on 26 March 1991. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. His service was characterized as under honorable conditions (general). 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient in-service evidence to mitigate the applicant’s misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 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 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. b. 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. 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. ABCMR Record of Proceedings (cont) AR20190004218 2 1