BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20190006411 APPLICANT REQUESTS: The applicant requests an upgrade of his general, under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 DD Form 256 (Honorable Discharge Certificate) listed his character of service as honorable. 3. On 6 August 1990, the applicant enlisted in the Regular Army for a period of 2 years and 17 weeks. He completed training requirements and was awarded military occupational specialty 11B (Infantryman). He was 18 years old when he enlisted. 4. On 17 January 1991 a medical examination cleared the applicant for administrative separation. 5. On 18 January 1991, he underwent a mental status evaluation. He was diagnosed with an adjustment disorder with mixed emotional features, a personality disorder not otherwise specified with borderline passive-aggressive with avoidant traits, and an "occupational problem." Due to the above personality disorders, it was evident that the applicant would have longstanding difficulties adapting emotionally to the military life. The applicant had the mental health clearance and capacity to participate in any administrative proceedings that he may have become involved in deemed appropriate by his chain of command. If his command was in accord, the above diagnosis of personality disorder could warrant discharge from the Army through administrative disposition. 6. On 15 March 1991, the applicant’s commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance. His commander recommended he receive a general, under honorable conditions discharge. His commander stated the reasons for the proposed action were that the applicant had demonstrated to his chain of command he was unable to perform his duties as an infantryman up to the high infantry standards. His commander also advised him of his right to consult with legal counsel. a. The applicant acknowledged receipt of the proposed separation action; which advised him of his available rights. He waived the opportunity afforded to him to consult or be represented by military or civilian counsel. b. He elected not to submit a statement in his own behalf. He acknowledged he understood that he could expect to encounter extreme prejudice in civilian life if a general discharge were to be issued to him. c. The applicant’s commander stated that the applicant clearly had no potential for useful service under conditions of full mobilization. Due to the hazardous nature of infantry missions the applicant would be a hazard to himself and to his unit. 7. On 28 March 1991, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance, and directed that he be issued a General Discharge Certificate. 8. The applicant’s record did not contain the complete facts and circumstances surrounding this case; however, a DD Form 214 shows on 9 April 1991, the applicant was released from active duty in accordance with the separation authority's decision. His DD Form 214 shows he completed 8 months and 4 days of net active service this period. He was transferred to the United States Army Reserve Control Group (Annual Training), and he was awarded or authorized the: * Army Service Ribbon * National Defense Service Medal * Parachutist Badge * Expert Marksmanship Badge with M-16 Rifle Bar * Sharpshooter Marksmanship Badge with Grenade Bar 9. The applicant contends a DD Form 256 listed his discharge as honorable; nevertheless, the applicant did not provide a copy of the DD Form 256, and his record did not contain an Honorable Discharge Certificate supporting his claim. 10. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. 11. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. Separation under this chapter requires commanders to establish that a Soldier meets medical retention standards. 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. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 evidence of in-service mitigating factors 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. 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. X___________________ 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Chapter 13 of this regulation 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. Separation under this chapter requires commanders to establish that a Soldier meets medical retention standards. b. 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. 4. 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 on the basis of 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006411 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006411 5 ABCMR Record of Proceedings (cont) AR20190006411 4