IN THE CASE OF:  

BOARD DATE:  7 February 2023

DOCKET NUMBER:  AR20220007249


APPLICANT’S REQUEST: an upgrade of his general discharge under honorable 
conditions to an honorable character of service.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Army Discharge Review Board)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, 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, in effect, the Board should upgrade his character of service 
because he got hurt while on active duty and, as a result, could not perform his normal 
duties; his leadership put him on light duty and ultimately separated him for 
unsatisfactory performance. 

3.  The applicant's service records show:

	a. On 23 February 1984, the applicant enlisted into the Regular Army for 3 years. 
Upon completion of initial entry training and the award of military occupational specialty 
16S (Man-Portable Air Defense Systems (MANPADS) Crewman), orders assigned him 
to an air defense artillery battery at Fort Carson, CO; he arrived at his new unit, on 
26 June 1984. Effective 1 April 1985, the applicant's chain of command promoted him to 
privates first class (PFC)/E-3.

	b. The applicant's separation packet is unavailable for review; however, the 
applicant's service record includes a memorandum, excluding the applicant from 
reentering Fort Carson, his separation orders, and his DD Form 214 (Certificate of 
Release or Discharge from Active Duty). 
		(1)  The memorandum, dated 3 June 1985 and issued by the Fort Carson 
garrison commander, advises the applicant he cannot reenter Fort Carson because he 
violated military law and regulation, specifically: disobeying a lawful order; making and 
uttering worthless checks on a closed account; and failing to go to appointed places of 
duty without authority.

		(2)  The applicant's separation orders reflect that, following his release from 
active duty, he was transferred to the U.S. Army Reserve (USAR) Control Group 
(Annual Training).

		(3)  The applicant's DD Form 214 shows that, on 18 June 1985, the Army 
released the applicant from active duty under honorable conditions (general). The 
DD Form 214 additionally reflects the following:

*	Item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) – PFC
*	Item 12c (Net Active Service This Period) – 1 year, 3 months, and 25 days 
*	Item 13 – Army Service Ribbon and two marksmanship qualification 
badges 
*	Item 25 (Separation Authority) – "AR (Army Regulation) 635-200 
(Personnel Separations – Enlisted Personnel), CHAP 13 (Separation for 
Unsatisfactory Performance)"
*	Item 28 (Narrative Reason for Separation – "Unsatisfactory Performance"  

	c. Effective 13 March 1989, U.S. Army Reserve Personnel Center Orders relieved 
the applicant from the USAR Control Group (Annual Training) and assigned him to a 
Troop Program Unit (TPU). On 23 January 1990, Fourth Army Orders honorably 
discharged the applicant from the USAR.

4.  The applicant requests the upgrade of his under honorable conditions separation.

	a. The absence of the applicant's separation packet means we are unable to 
determine the full circumstances of his separation; however, his available service record 
includes his DD Form 214 and, based on the information provided on the DD Form 214, 
and due to the lack of any evidence to the contrary, the Board presumes the applicant's 
leadership completed his release from active duty properly. 

		(1)  AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of 
record; it is not an investigative body. Additionally, the ABCMR begins its consideration 
of each case with the presumption of administrative regularity (i.e., the documents in an 
applicant’s service records are accepted as true and accurate, barring compelling 
evidence to the contrary). An applicant bears the burden of proving the existence of an 
error or injustice by presenting a preponderance of evidence, meaning there is a greater 
than a 50 percent chance that what an applicant’s claims is true.
		(2)  The version of the military personnel records regulation, then in effect 
(AR 640-10 (Individual Military Personnel Records)), required case files for approved 
separation actions to be maintained in the affected Soldiers' official military personnel 
file.

	b. During the applicant's era of service, and per the provisions of chapter 13, 
AR 635-200, commanders could initiate separation action against Soldiers when the 
commander determined they were unqualified for further military service.

		(1)  The regulation specified the below-listed criteria, stating Soldiers should be 
separated when, in the commander's judgment:

*	they would not develop sufficiently to participate in satisfactorily in training 
and/or become satisfactory Soldiers; 
*	the seriousness of the circumstances were such that the Soldiers' 
retention would have an adverse impact on the military discipline, good 
order, and morale; 
*	it was likely the Soldiers would continue to be disruptive influences in 
present and future assignments; 
*	it was likely that the circumstances forming the basis for initiation of 
separation proceedings would continue or recur
*	it was unlikely the member would perform duties effectively in the future, 
including when considering his/her potential for advancement or 
leadership
*	the member met medical retention standards, as outlined in 
AR 40-501 (Standards of Medical Fitness)

		(2)  Prior to the initiation of separation action, the regulation stipulated that 
commanders ensure Soldiers had received adequate counseling and rehabilitation. The 
regulation pointed out that military service was a calling different from any civilian 
occupation, and as such, commanders were not to consider separation solely due to 
unsatisfactory performance unless the leadership had made efforts to rehabilitate the 
Soldiers.

		(3)  The regulation permitted separation authorities to furnish Soldiers separated 
under this provision with either an honorable or a general discharge under honorable 
conditions.

5.  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.

6.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.  

7.  MEDICAL REVIEW: 

    a.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents, the Record of Proceedings (ROP), and the applicant's available records in 
the Interactive Personnel Electronic Records Management System (iPERMS), the 
Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts 
Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV).  The 
applicant requests discharge upgrade from ‘Under Honorable Conditions (General)’ to 
‘Honorable’.  He contends that he couldn’t perform his duties (was on light duty) due to 
an injury.
    b.  The complete facts and circumstances surrounding the applicant’s discharge from 
service are unknown; however, the available military record was summarized in the 
ROP.  Of note, the applicant enlisted in the Army Reserve 23Feb1984.  There was no 
combat deployment.  03Jun1985 Fort Carson memo indicated that the applicant was 
barred from entering its installation for the following:  Disobeying a lawful order; making 
and uttering worthless checks on a closed account; and failure to go to appointed place 
of duty without authority.  The 11Jun1985 ORDERS 114-652 indicated that he was 
released from active duty not by reason of physical disability, effective 18Jun1985.
    c.  The Personnel Qualification Record prepared 15Jul1989 (6 months prior to 
discharge from USAR) showed physical category ‘A’ and PULHES 111111 and he was 
deployable with no restriction.  There were no service treatment records available for 
review.  JLV search revealed that the applicant has not been service connected by the 
VA for any disabilities.  JLV search also revealed that VA records began in December 
2011, over 2 decades after discharge from service.  VA community health partner 
records (28Jul2017 Kettering Health Network encounter note) showed that the applicant 
carries multiple diagnoses to include Lumbar Herniated Disc, Right Leg Pain, Right Arm 
Pain and others; however, no further information was forthcoming about an in-service 
injury.  The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 
25Aug2017, Clarifying Guidance were also reviewed; however, there are no known 
behavioral health diagnoses to consider with respect to mitigation of misconduct that 
could have contributed to the applicant’s discharge from service.  
KURTA QUESTIONS:
Did the applicant have a condition or experience that may excuse or mitigate the 
discharge? None known.	
Did the condition exist, or did the experience occur during military service? N/A
Does the condition or experience actually excuse or mitigate the discharge? N/A

BOARD DISCUSSION:

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 applicant’s separation packet is not available. 
However, his DD Form 214 shows he was separated for unsatisfactory performance 
with a general discharge after completing 1 year, 3 months, and 25 days of active 
service. The Board considered the medical records, any VA documents provided by the 
applicant and the review and conclusions of the advising official. The Board concurred 
with the medical advisory opinion finding insufficient evidence of in-service mitigating 
factors to overcome the misconduct. 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 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 concerned1.  

		 

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.  Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) 
provides the Secretary of the Army shall ensure that an applicant seeking corrective 
action by ARBA is provided a copy of all correspondence and communications, 
including summaries of verbal communications, with any agencies or persons external 
to agency or board, or a member of the staff of the agency or Board, that directly 
pertains to or has material effect on the applicant's case, except as authorized by 
statute.

3.  AR 635-200, in effect at the time, set forth the basic authority for the separation of 
enlisted personnel.

	a. Paragraph 3-7a (Honorable Discharge) stated 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. Separation authorities could furnish an honorable discharge when 
subsequent honest and faithful service over a greater period outweighed disqualifying 
entries in the Soldier's military record. It was the pattern of behavior, and not the 
isolated instance, which commanders should consider as the governing factor.

	b. Under chapter 13:

		(1)  Commanders could initiate separation action against Soldiers when, in the 
commanders' judgment:

*	they would not develop sufficiently to participate in satisfactorily in training 
and/or become satisfactory Soldiers; 
*	the seriousness of the circumstances were such that the Soldiers' retention 
would have an adverse impact on the military discipline, good order, and 
morale; and
*	it was likely the Soldiers would continue to be disruptive influences in present 
and future assignments 

		(2)  Prior to the initiation of separation action, the regulation stipulated that 
commanders ensure Soldiers had received adequate counseling and rehabilitation. The 
regulation pointed out that military service was a calling different from any civilian 
occupation, and as such, commanders were not to consider separation solely due to 
unsatisfactory performance unless the leadership had made efforts to rehabilitate the 
Soldiers.

		(3)  The regulation permitted separation authorities to furnish Soldiers separated 
under this provision with either an honorable or a general discharge under honorable 
conditions.

4.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and 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.  

5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which 
means the Board presumes what the Army did was correct. The Board is not an 
investigative body, and the applicant bears the burden of providing a preponderance of 
evidence to support claims of inequity and/or injustice.

6.  AR 640-10, in effect at the time, required case files for approved separation actions 
to be maintained in the affected Soldiers' official military personnel file

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20220007249


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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