IN THE CASE OF: BOARD DATE: 18 February 2021 DOCKET NUMBER: AR20200003358 APPLICANT REQUESTS: * upgrade of his under honorable conditions (general) discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 is trying to better his life. He's not the same person he was while he was in the Army. He is trying to purchase a house for his wife and daughter. After he was discharged he had several issues that ran parallel with why he was discharged. In June of 2017, his fiancée got him to go to a doctor. His life has changed and he is a father of a 19-month-old baby girl. They are looking into buying property and an upgraded discharge would go a long way to help with that. 3. On 9 March 1987, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) at the age of 17 years for a period of 8 years. On 8 April 1987, the applicant was discharged from the USAR DEP and entered active duty for a period of 3 years. 4. On 6 June 1988, the applicant was counseled for failing to report to duty and for willfully destroying a window, the property of the U.S. Government on 1 April 1988. He was being recommended for separation under the provisions of Army Regulation 635- 200 (Personnel Separations - Enlisted Personnel), Chapter 13, for unsatisfactory performance. 5. On 20 April 1988, the applicant received a Summary Court-Martial. He was found guilty of failing to report to duty and destroying a window, military property of the United States. He was sentenced to be confined for 21 days. 6. On 17 May 1988, the applicant received a medical examination for discharge. He was found to be qualified for separation. On 18 May 1988, he received a mental health evaluation and was psychiatrically cleared for administrative actions deemed appropriate by the command. 7. On 6 June 1988, the applicant's commander advised him that he was initiating separation action against the applicant under chapter 13, AR 635-200; the commander stated he was initiating the action based on the applicant's commission of willful acts in violation of the Uniform Code of Military Justice including failing to report to duty and destruction of a window, the property of the US Government, which resulted in a summary court-martial conviction. The applicant acknowledged receipt of the notification on 6 June 1988. 8. On 6 June 1988, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the contemplated separation action and had apprised him of his rights under the separation process; the applicant indicated he would not submit statements on his own behalf. 9. On 12 October 1988, the separation authority waived the rehabilitative requirements and directed the applicant's under honorable conditions (general) discharge. On 18 November 1988, the applicant was discharged accordingly. The applicant's DD Form 214 shows he completed 1 year, 6 months, and 24 days of his 3-year enlistment contract. 10. During the applicant's era of service, commanders could separate Soldiers who, in the commander's judgment, would not develop sufficiently to become a satisfactory Soldier; in addition, the commander had to find that the circumstances forming the basis for the separation action were likely to recur. Soldiers separated under this provision of Army Regulation 635-200 could be furnished either an honorable or an under honorable conditions (general) discharge. 11. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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 insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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 :XX :XX :XX 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Under chapter 13, commanders were required to initiate separation action for Soldiers who, in the commander's judgment, would not develop sufficiently to become a satisfactory Soldier; in addition, the circumstances forming the basis for the separation action were likely to recur. Soldiers separated under this provision could be furnished either an honorable or general discharge under honorable conditions. 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. 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. 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.) AR20200003358 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1