IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220005173 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) characterization of service and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online Application (ARBA Case Tracking System), 7 April 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty, 26 June 1996 * DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), 2 April 1999 * DA Form 1059 (Service School Academic Evaluation Report (AER)), 26 June 1999 * DA Form 2166-7, 01 December 1999 * DA Form 1059, 18 January 2000 * DA Form 2166-7, 19 April 2002 * DA Form 2166-7, 22 February 2003 * DA Form 1059, 22 May 2003 * DA Form 1059, 21 June 2003 * DA Form 1059, 24 July 2003 * DA Form 1059, 22 January 2004 * DA Form 2166-7, 18 October 2004 * Army Commendation Medal Certificate, 18 May 2005 * Warrant Officer Appointment Letter, 10 August 2005 * DA Form 2166-7, 26 September 2005 * DA Form 1059, 26 April 2006 * Meritorious Service Medal Certificate, 31July 2008 * DA Form 1059, 12 January 2011 * Orders 11-349-00004, HQ, 143D CS CMD Sustainment Expeditionary, 15 December 2011 * End of Tour Report, 20 September 2012 * DA Form 1059, 1 June 2017 * DA Form 638 (Recommendation for Award), 2 November 2018 * DA Form 1059, 31 May 2019 * DA Form 638, 1 May 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 was unaware of his ability to have his injustice considered before the Board until recently during a conversation with his S1. 3. The applicant enlisted in the regular Army on 23 June 1989. 4. The applicant's NCO leadership rendered performance counseling on 3 separate occasions between 30 January 1990 and 31 May 1990 for the following: * writing and cashing checks that were returned, totaling $1,098.00 * writing checks with insufficient funds, with the intent to defraud and deceive * inability to manage financial obligations * initiation of separation due to unsatisfactory performance 5. On 8 June 1990, the applicant’s immediate commander notified him he was recommending him for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations, Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance (indebtedness) because of the applicant’s inability to manage his finances and continuously writing checks with insufficient funds in his checking account. The applicant's commander informed him he had the right to consult with counsel, to submit statements on his own behalf, to obtain copies of all documents pertaining to the separation process, and to waive his rights in writing. 6. On 8 June 1990, the applicant acknowledged he was advised by his consulting counsel of the basis for the contemplated action to separate him for unsatisfactory performance under AR 635-200, chapter 13, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. He understood that if he had less than 6 years of total active and Reserve military service at the time of separation and was being considered for separation for reason of misconduct under AR 635-200, chapter 13, he was not entitled to have his case heard by an administrative separation board unless he was being considered for a discharge under other than honorable conditions. a. He waived personal appearance and consideration of his case by an administrative separation Board. He requested a military consulting counsel and elected to submit statements on his own behalf. b. He understood that his willful failure to appear before the administrative separation board by absenting himself without leave would constitute a waiver of his rights to a personal appearance before the board. c. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. d. He understood that he may, up until the date the discharge authority directs or approves his discharge, withdraw his waiver request that a board of officers hear his case. 7. The applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 13, paragraph 13-2, on 11 June 1990. The commander's reasons for the recommended action: the applicant's retention would have an adverse impact on military discipline, good order, and morale. Additionally, he recommended the applicant be separated from service with a general discharge certificate. 8. On 14 June 1990, the applicant underwent a medical examination for the purpose of separation. The doctor did not note any medical issues and found the applicant qualified for separation. 9. On 12 July 1990, the separation authority approved the recommended discharge, under the provisions of AR 635-200, chapter 13, and directed the applicant be issued a general discharge certificate. 10. The applicant was discharged on 26 July 1990 under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, in the rank/grade of private (PV2)/E-2. His DD Form 214 shows his service was characterized as under honorable conditions (general). He completed 1 year, 1 month, and 4 days of net active service during the covered period with no had lost time. Additionally, his DD Form 214 does not list any personal decorations or awards. 11. The applicant's record shows he re-enlisted into the United States Army Reserve (USAR) on 13 December 1997. He was appointed to the rank of Warrant Officer (WO) on 10 August 2005 and was promoted to his current rank Chief Warrant Officer 4 (CW4) on 9 August 2019. 11. The applicant's request includes 32 pages of various military records from his military personal file since he joined the USAR. The full 32-page packet is available for the Board to review in the supporting documents file. The records include copies of the following documents, which show he was successful as a Soldier and NCO, he did well during military schooling, he deployed, and he received various awards for service or achievement: * NCOERs * AER * awards certificates * officer appointment letter * deployment orders * award recommendations 12. Discharges under the provisions of AR 635-200, chapter 13, Soldiers are separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 13. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty on 26 July 1990 under chapter 13 by reason of unsatisfactory performance. His DD Form 214 shows his service was characterized as under honorable conditions (general). He completed 1 year, 1 month, and 4 days of net active service during the covered period with no had lost time. Although his post service performance in the USAR is noteworthy, he did not complete the enlistment period he is contesting. The Board believed he received a proper characterization of service. Based on a preponderance of evidence, the Board determined that 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 :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. ? REFERENCES: 1. Title 10, U.S. Code, 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. Army Regulation 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 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. c. Chapter 13 established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. d. Paragraph 13-2a(1) states, commanders will separate a soldier for unsatisfactory performance when it is clearly established that (1) In the commander's judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 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, 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. 4. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005173 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1