ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  12 September 2019

	DOCKET NUMBER:  AR20190009047


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), dated 5 April 2019

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 would like an upgrade to better his living conditions and to 
reap any benefits available to him for his small sacrifice.  He was in a military 
occupational specialty (MOS) that was not entirely to his liking, due to unit requests.

3.  The applicant enlisted in the U.S. Army Reserve on 16 February 1989.  He entered 
active duty for training on 4 May 1989, for the purpose of completing his initial entry 
training.  His records indicate he did not complete his initial entry training and was not 
awarded an MOS.

4.  The applicant was relieved from the MOS 91D (Operating Room Specialist) course 
on 11 September 1989, for failure to maintain a passing score on crucial objectives.

5.  The applicant accepted non-judicial punishment on 13 October 1989, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to 
obey a lawful order, on or about 7 October 1989, and for failing to go at the time 
prescribed to his appointed place of duty, on or about 10 October 1989.

6.  The applicant was relieved from the MOS 91A (Medical Specialist) course on 
1 December 1989, for failure to retest on module J and a total of five initial tests.
7.  The applicant's immediate commander notified the applicant on 8 February 1990 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 specific reason cited was the applicant’s double MOS 
failure and lack of potential to become a productive member of the Armed Forces.

8.  The applicant's commander formally recommended the applicant's separation from 
service under the provisions of Army Regulation 635-200, Chapter 13, on the same 
date.

9.  The applicant consulted with counsel on 12 February 1990.  Subsequent to receiving 
counsel, the applicant waived his right to submit statements in his own behalf.  He 
acknowledged that he may expect to encounter substantial prejudice in civilian life if a 
general discharge, under honorable conditions was issued to him.

10.  The separation authority approved the recommended discharge on 23 February 
1990 and directed that the applicant receive a general discharge.

11.  The applicant was released from active duty on 2 March 1990.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) confirms he was discharged 
under the provisions of Army Regulation 635-200, Chapter 13, by reason of 
unsatisfactory performance.  He was credited with 9 months and 29 days of net active 
service, with his service characterized as under honorable conditions (general).

12.  The Board should consider the applicant's overall record and the statement he 
provided in accordance with the published equity, injustice, or clemency determination 
guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient 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 did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service, no 
meritorious personal awards and insufficient evidence of mitigating circumstances for 
the unsatisfactory performance that resulted in his discharge. The Board found limited 
evidence of remorse or post-service honorable conduct that might have mitigated the 
discharge characterization.  The Board agreed that the applicant’s discharge 
characterization as reflected on his DD Form 214 is appropriate.
 


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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190009047

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