IN THE CASE OF: BOARD DATE: 11 June DOCKET NUMBER: AR20190010812 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 14 May 2019 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 14 May 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 Record (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 to further his education. 3. The applicant enlisted in the Regular Army on 29 June 1993. 4. The applicant received 19 negative counselling sessions between 15 December 1993 and 8 February 1995, for negative aspects of his performance including but not limited to: * failure to be at his appointed place of duty (24 occasions) * being out of ranks (4 occasions) * leaving his appointed place of duty without authority (4 occasions) * uniform violations (3 occasions) * failure to advise his command of a serious medical condition (2 occasions) * bar to reenlistment (2 occasions) * failure to obey a lawful order from a commissioned officer * lying to a commissioned officer 5. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 12 January 1994, for failure to repair (3 occasions) * on 19 April 1994, for failure to go to his appointed place of duty (3 occasions) and failure to obey a lawful order 6. The applicant was afforded a mental status evaluation on 7 February 1995 that cleared the applicant for any administrative actions deemed appropriate. 7. The applicant's separation processing documentation is not available for review. However, his record contains his DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows he was discharged on 14 April 1995, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, by reason of unsatisfactory performance. His DD Form 214 further shows: * he was discharged in the grade/rank of private/E-1 * he was credited with one year, nine months, and 16 days of active service * no award of any personal decorations * his service was characterized as under honorable conditions (general) 8. The Board may consider the applicant's petition, his service 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 discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the record of counseling and non- judicial punishment and the reason for his separation. The Board found insufficient evidence of in-service mitigating factors for the 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 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 :XXX :XX :XXX 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides 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 sets forth the basic authority for the separation of enlisted personnel. a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13 provides that a Soldier may be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance when in the commander's judgment: * the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the Soldier's retention will have an adverse impact on military discipline, good order, and morale * the Soldier will likely be a disruptive influence in duty assignments * the circumstances forming the basis for initiation of separation proceedings will likely continue or recur * the Soldier's ability to perform duties effectively is unlikely * the Soldier's potential for advancement or leadership is unlikely 4. 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) AR20190010812 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010812 4 ABCMR Record of Proceedings (cont) AR20190010812 3