IN THE CASE OF: BOARD DATE: 22 February 2021 DOCKET NUMBER: AR20210005613 APPLICANT REQUESTS: The applicant requests an upgrade of his general under honorable conditions discharge. 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) for period ending 13 June 2003 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 the reason he was discharged from active duty was due to the physical standards. He believes that with the current physical standards he would have been in a passing category. He is currently a police officer in New York City, NY, for the past 15 years and this change would benefit his career. 3. Having prior service in the U.S. Army Reserve (USAR), on 16 August 2001, the applicant enlisted in the Regular Army for a term of 3 years. 4. After his enlistment, he was assigned to Fort Hood, TX, in the military occupational specialty 31R (Multichannel Transmission Systems/Operator/Maintainer). 5. His record contains five counseling statements for failing the Army Physical Fitness Tests (APFTs). He was counseled on: * 2 November 2001 for failing the APFT pushup, sit-up, and run events on 30 October 2001; informed he could be separated if conduct continued * 22 March 2002 for failing the APFT run event on 20 March 2002 (141 days after the previous APFT) * 20 November 2002 for failing the APFT run event on this date (274 days after the previous APFT) * 18 December 2002 for failing a Diagnostic APFT run event on this date * 6 February 2003 for failing a Record APFT run event on 4 February 2003 (76 days after the previous APFT) 6. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 13 for unsatisfactory performance. The reason for his proposed actions was that he failed two consecutive Army Physical Fitness Tests. He also informed the applicant that he was recommending he receive an honorable discharge. 7. The applicant acknowledged he had been notified of the pending separation against him and he had been advised by his consulting counsel of the basis for the contemplated action to separate him for unsatisfactory performance. He elected not to submit statements on his own behalf. 8. The intermediate commander recommended separation with an honorable discharge and on 21 May 2003, the appropriate separation authority approved the recommendation for separation, and, contrary to the company and battalion commanders' recommendations, directed that his service be characterized as general under honorable conditions. 9. On 13 June 2003, the applicant was discharged under the provisions of AR 635-200, chapter 13 for unsatisfactory performance. His service was characterized as under honorable conditions (general). He completed 1 year, 9 months, and 28 days of his 3- year contractual obligation. His DD Form 214 shows he was awarded or authorized the National Defense Service Medal and the Army Service Ribbon. 10. His record is void of a medical evaluation and a mental status evaluation. 11. The applicant states the reason he was discharged from active duty was due to the physical standards. He believes that with the current physical standards he would have been in a passing category. He is currently a police officer in New York City, NY, for the past 15 years and this change would benefit his career. a. His record shows after having prior service in the USAR, he enlisted in the Regular Army. He was assigned to Fort Hood, TX, and he failed four record APFTs; two consecutive APFTs. He served 1 year, 9 months, and 28 days of his 3-year contractual obligation. b. AR 635-200, Chapter 13 was a separation for unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. A medical examination and a mental status evaluation are required when a Soldier is being processed for discharge under chapter 13. c. Although his record contains a separation packet that shows a mental status evaluation and medical examination were attached, there appears to be administrative irregularity that took place in the proper retention of required military records. AR 635- 200 requires Soldiers to receive both a medical examination and mental status evaluation when being processed for separation under chapter 13. We are unable to provide the board if he was processed properly or the disposition of his medical examination or mental status evaluation because his record is void of them. 12. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD 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 (circumstances regarding his APFT Failure), his record of service, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors in support of a clemency determination. His record shows he failed four record APFTs; two consecutive APFTs. He served 1 year, 9 months, and 28 days of his 3-year contractual obligation. 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 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 (AR) 350-1 (Training –– Army Training and Education) superseded AR 350-41 (Training –– Training in Units), which superseded AR 350-15 (Training –– The Army Physical Fitness Program). It prescribed policies, procedures, and responsibilities for developing, managing, and conducting Army training and education programs. It states: a. Soldiers who fail a record Army Physical Fitness Test (APFT) for the first time or fail to take a record APFT within the required period will be flagged in accordance with AR 600–8–2 (Suspension of Favorable Personnel Actions (Flag)). In the event of a record test failure, commanders may allow Soldiers to retake the test as soon as the Soldier and the commander feel the Soldier is ready. Soldiers without a medical profile will be retested no later than 90 days following the initial APFT failure. Reserve component soldiers not on active duty and without a medical profile will be tested no later than 180 days following the initial APFT failure. b. All soldiers must attain a score of at least 60 points on each test event or receive a "GO" on the alternate aerobic events. If a Soldier does not attain a minimum of 60 points in each event or a "GO" on an alternate aerobic event, the soldier is an event failure. When a Soldier fails one or more events, the Soldier is a test failure. Soldiers without medical profiles, who repeatedly fail the APFT, will be barred from re-enlistment or processed for separation from the service. Provisions for separation are in AR 635– 200 (for enlisted soldiers) and counterpart ARNG and USAR regulations. 2. AR 635-200 (Personnel Separations –– Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been 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. c. Chapter 13 established policy and prescribed procedures for separating members for unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. It stated commanders would separate a Soldier for unsatisfactory performance when: * it was clearly established that in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; * or the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale; * and it was likely that the Soldier would be a disruptive influence in present or future duty assignments; * and it was likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; * and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, was unlikely; * and the member meets retention medical standards d. A medical examination and a mental status evaluation are required when a Soldier is being processed for discharge under chapter 13. 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. 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 (to include that provided by an applicant), 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) AR20210005613 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005613 5 ABCMR Record of Proceedings (cont) AR20210005613 4