ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20190005290 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is fully honorable in lieu of under honorable conditions (General). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * General Discharge Certificate 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 prefers that a general discharge not loom over him. 3. On 16 November 1994, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty (MOS) 64B (Light Wheel Vehicle Mechanic). 4. A General Counseling Form, dated 3 February 1996, shows he was counseled for failing his Army Physical Fitness Test (APFT). 5. On 20 November 1996, his commander notified him he was initiating action to discharge him under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance prior to the expiration of his term of service with a general discharge. The commander stated his proposed action was based on the applicant's failure of his last APFT’s on 7 February and 19 June 1996. 6. On 20 November 1996, the applicant consulted with counsel and he was advised of the basis for the contemplated action to separate him under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance, and of his rights. 7. On 20 November 1996, he acknowledged he had been advised by consulting counsel of the basis for the contemplated action to accomplish his separation for unsatisfactory performance and its effects, and the rights available to him. He also waived his right to submit statements in his behalf. 8. The applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service under the provisions of chapter 13, Army Regulation 635-200, based on failure of his last two APFT’s on 7 February and 19 June 1996. 9. On 21 November 1996, the applicant’s separation action was determined to be legally sufficient. 10. On 4 December 1996, the appropriate authority waived the requirement for a rehabilitative transfer and directed that he be issued a general discharge under honorable conditions. 11. On 18 December 1996, he was discharged due to unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200 with a general discharge. His DD Form 214 shows he completed 2 years, 1 month, and 3 days of active service. He was awarded the Army Service Ribbon and Marksman Marksmanship Qualification Badge Rifle Bar. 12. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 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. 13. The applicant contends he prefers that a general discharge not loom over him. His record shows he was discharged under the provisions of chapter 13, AR 635-200, due to unsatisfactory performance after he failed two APFT’s. 14. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 15. He completed 2 years, 1 month, and 3 days of his 4 year enlistment obligation. In reaching its determination, the Board can consider the applicant's petitions, and his service record in light of the published Department of Defense 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 APFT failures that led to his separation, the lack of evidence pertaining to remedial measures taken by the command, the applicant’s overall record of service and whether to apply equity, injustice and clemency guidance. The Board determined, based on the preponderance of evidence, that the character of service the applicant received was too harsh that an upgrade was warranted. 2. After reviewing the application and all supporting documents, the Board determined that relief was warranted. 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 DD Form 214 for the period of service ending 18 December 1996 to show in item 24 (character of service) - 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): 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. 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 b. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. c. 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 (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. 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 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. 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.