ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  15 November 2019 DOCKET NUMBER:  AR20190006558


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)

.Congressional Inquiry form

.Certificates of Training

.Certificates of Achievement



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states his discharge is inequitable because it is based on the fact thathe was unable to pass the sit-up portion of his physical training (PT) testing.  Thisresulted in him being administratively separated under the provisions of ArmyRegulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13,unsatisfactory performance.  This would have not been an issue had it not been for aninjury that he sustained while in Bosnia, and the medical records destroyed.  Thishappened during an unlawful/unmarked clearing of a minefield that had Bosnianchildren playing in and around it.

3.On 25 August 1995, he enlisted in the Regular Army for a period of 3 years.  Hecompleted training requirements and was awarded military occupational specialty 12B(Combat Engineer).

4.The applicant served in Bosnia from 4 March to 22 November 1996.

5.A review of his service record shows:
a.He was counseled on multiple occasions for:

.failing his Army Physical Fitness Test (APFT)

.being absent from his appointed place of duty

.failing to pay a debt in the amount of $330.00 dollars

.being arrested for stealing from the Post Exchange



b.He failed several diagnostic and record APFT tests.

c.On 13 August 1997, he received non-judicial punishment under the provisions ofArticle 15 of the Uniform Code of Military Justice, for stealing two movies, the property of the Post Exchange.  He elected not to appeal.   

6.On 12 October 1997, the applicant’s commander notified him that, he was initiatingaction to separate him under the provisions of Army Regulation (AR) 635-200(Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory dutyperformance, and that he was recommending he receive a general, under honorableconditions discharge.

a.The reasons for the proposed action were:  While assigned to the unit, theapplicant received a Company Grade Article 15 on 13 August 1997 for larceny.  The punishment consisted of:  Reduction to the pay grade of E-2; forfeiture of $235.00 dollars per month for one month; extra duty for 14 days; and restriction for 14 days.  The applicant also had received derogatory counseling statements for failing the APFT on two consecutive occasions; failing to pay for late fees and a loss movie at the Straussberg video store; shoplifting in the Straussberg Main Exchange; and being absent from his appointed place of duty.  As a result, the commander recommended he be separated from the service.  His commander also advised him of his right to consult with legal counsel.     

b.The applicant acknowledged receipt of the proposed separation action and heelected not to submit a statement in his own behalf.  

c.He acknowledged he understood that he could expect to encounter extremeprejudice in civilian life if a general discharge were to be issued to him.  He also acknowledged he had been advised of the basis for his contemplated separation, its effects, and the rights available to him.   

d.The applicant’s commander stated, the applicant had no potential for usefulservice under conditions of full mobilization. 

e.His chain of command recommended approval of the separation action.

f.The separation authority approved the applicant's discharge under the provisionsof AR 635-200, chapter 13, and directed that he be issued a General Discharge Certificate.  He also directed the applicant be transferred to the Individual Ready Reserve.   

7.On 18 December 1997, the applicant was released from active duty in accordancewith the separation authority's decision.  His DD Form 214 (Certificate of Release orDischarge from Active Duty) shows he completed 2 years, 3 months and 24 days of netactive service this period.  He was transferred to the United States Army ReserveControl Group, and he was awarded or authorized the:

.National Defense Service Medal

.Army Service Ribbon

.Overseas Service Ribbon

.Armed Forces Service Medal

.NATO Medal



8.In support of his case, the applicant provides certificates of training andachievement, which were provided to the Board.

9.The applicant asserts he was separated based on failed APFT tests; nevertheless,his record shows his commander recommended he be separated for receiving non-judicial punishment for stealing from the Main Exchange, failing to pay a debt, failing tobe at his appointed place of duty, and failing the APFT on two consecutive occasions.

10.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).  Theregulation states that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

11.Army Regulation 635-200 sets forth the requirements and procedures foradministrative discharge of enlisted personnel.

a.Chapter 13 of this regulation provides for separation due to unsatisfactoryperformance 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 tobenefits 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, hisservice record, and his statements in light of the published guidance on equity, injustice,or clemency.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct and the reason for his separation.The Board considered his statement regarding an injury, but found insufficient evidenceof in-service mitigation to overcome the documented misconduct and the applicantprovided no evidence of post-service achievements or letters of reference in support ofa clemency determination.  Based on a preponderance of evidence, the Boarddetermined that the character of service the applicant received upon separation was notin error or unjust.

2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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. 


ADMINISTRATIVE NOTE(S): 

Not Applicable 









REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 oflimitations 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) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).  Theregulation states that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forththe requirements and procedures for administrative discharge of enlisted personnel.

a.Chapter 13 of this regulation provides for separation due to unsatisfactoryperformance 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 tobenefits 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 Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  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 maybe warranted based on equity or relief from injustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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//