IN THE CASE OF: BOARD DATE: 12 October 2022 DOCKET NUMBER: AR20220002760 APPLICANT REQUESTS: Upgrade of her under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (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 she needs an honorable discharge to be able to get her health benefits from the Veterans Administration (VA). Her knees and legs had injuries while she served. She was not aware that she needed to change her character of service or that it would affect her benefits for health reasons. 3. The applicant enlisted in the Regular Army on 27 November 1990. Upon completion of training, she was awarded military occupational specialty (MOS) 91A (Medical Specialist). 4. The applicant received formal counseling while stationed at Fort Bragg, North Carolina, on the following dates: * 31 July 1991, for failure to be at her place of duty, on or about 22 July 1991 * 31 July 1991, for failure to follow a direct order, on or about 22 July 1991 * 26 August 1991, for her attitude and medical knowledge when treating patients * 9 October 1991, for being absent from physical training, on 16 September 1991 * 9 October 1991, for failure to adapt at the Troop Medical Clinic * 16 October 1991, for failure to complete 12-mile ruck march due to lack of motivation, on or about 9 October 1991 * 17 October 1991, for deficiency in her duty performance, conduct and overall behavior * 6 November 1991, for being out of uniform and failure to keep up with her items, on or about 23 October 1991 * 6 November 1991, for lack of motivation during the morning physical training session, on or about 30 October 1991 * 6 November 1991, for failure to return for weigh-in after physical training run, failure to be present for special physical training and failed to prepare for room inspection, on or about 5 November 1991 * 7 November 1991, for failing to meet the minimum standards for the Army Physical Readiness Test, on or about 6 November 1991 * 7 November 1991, for failure to perform basic duties as a medic 5. On 12 November 1991, the applicant underwent a medical examination in accordance with Army Regulation 40-501 (Medical Services – Standards of Medical Fitness), which found her qualified for administrative separation. 6. The applicant's immediate commander notified the applicant on 14 November 1991, that he was initiating actions to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 (Unsatisfactory Performance). As the specific reason, the commander cited the applicant's failure to overcome deficiencies, MOS knowledge, absenteeism, and adaptation to military life. 7. Subsequently, the applicant acknowledged receipt of the proposed separation notification. She was advised of the reasons for separation and of the rights available to her. She refused to consult with counsel and declined to submit a statement in her own behalf. She acknowledged her understanding that she could expect to encounter substantial prejudice in civilian life if a discharge under honorable conditions was issued. 8. On 14 November 1991, the applicant's immediate commander formally recommended her separation under the provisions of Army Regulation 635-200, Chapter 13. Subsequently, the Staff Judge Advocate reviewed the administrative separation packet and found the file legally sufficient. 9. The separation authority approved the recommended action and directed the issuance of a general discharge certificate and transferred the applicant to the Individual Ready Reserve. 10. The applicant was discharged on 20 December 1991. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. Her service was characterized as under honorable conditions (general). She completed 1 year and 24 days of net active service this period. She was awarded or authorized the Army Service Ribbon, Sharpshooter Badge M-16, Parachutist Badge, and the National Defense Service Medal. 11. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board further found insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. 2. The Board determined the applicant’s service record exhibits numerous instances of misconduct during her enlistment period for 1 year and 24 days of net active service for this period. The applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The applicant’s service does not meet the criteria for an honorable discharge characterization and is not otherwise so meritorious that any other characterization would be inappropriate. The Board found the applicant has not demonstrated by a preponderance of evidence that any further discharge upgrade is warranted. 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, 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 for the administrative separation of enlisted personnel. The version in effect at the time provided that: 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. Chapter 13 provided for separation due to unsatisfactory performance when in the commander’s judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002760 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1