IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220007375 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions (general) to honorable and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 7 April 2022 * Applicant's resume, undated 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 served in the Army from 22 March 1994 to 28 April 1995. His difficulties while in service stemmed from his inability to complete the 2-mile run within the allotted time during basic training and advanced individual training. He states the ridicule and stress he endured during his enlistment was significant and led to his mistakes. Since the applicant's discharge, he has served has a federal law enforcement officer and he retired on 30 April 2022. Furthermore, he has been a productive citizen, raised three children, and has matured and grown as a person. He states his biggest regret was he was not able to complete his enlistment as a Soldier. 3. The applicant enlisted in the regular Army on 22 March 1994. He completed one station unit training and was subsequently assigned to his first permanent duty station on or around 1 August 1994. 4. The applicant's received two negative performance counseling from his non- commissioned officer (NCO) leadership between 21 October 1994 to 22 October 1994 for the following in fractions. failure to attend physical training (PT) formation and failure to follow instructions. 6. The applicant received company grade non judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 28 October 1994 for dereliction in the performance of his duties and failing to remain vigilant and alert. His punishment consisted of 5 days of extra duty. 7. On 29 November 1994, the applicant's NCO leadership counseled him for failure to meet Army Physical Fitness Test (APFT) standards. The NCO noted the applicant's "weak area" was the 2-mile run, in which he failed to receive a passing score. The applicant was ordered to attend special fitness training and was advised he had 90 days to prepare for his retest of the APFT. Furthermore, he was advised that his inability to meet the Army PT standards could warrant initiation of separation under the provisions of AR 635-200 (Personnel Separations, Enlisted Personnel), chapter 13, for poor duty performance. 8. The applicant received company grade NJP on 12 January 1995 for failure to go to his appointed place of duty on or about 9 January 1995. His punishment consisted of reduction to the rank/grade of Private First Class (PFC)/E-3, forfeiture of $232.00 for one month (suspended), 14 days extra duty, and 14 days restriction (suspended). 9. On 4 March 1995, the applicant's NCO leadership counseled him for failure of a record APFT. The NCO noted the applicant failed the second record APFT and advised him he may be separated from the Army. 10. The applicant underwent a medical examination for the purpose of separation on 9 March 1995. The doctor did not note any medical issues and found the applicant qualified for separation. 11. The applicant underwent a mental status evaluation for the purpose of separation on 30 March 1995. The doctor did not note any mental issues and cleared the applicant for any administrative actions deemed appropriate by the command, to include separation from service. 12. On 31 March 1995, the applicant’s immediate commander notified him she (the commander) was recommending him for discharge under the provisions of Army Regulation (AR) 635-200, chapter 14-12b, for pattern of misconduct. a. The commander lists the following reasons for her proposed actions: * 21 October 1994 - counseled for failure to attend a PT formation * 22 October 1994 - counseled for failure to follow instructions * 28 October 1994 - received a summarized Article 15 for dereliction in the performance of his duties * 29 November 1994 - failed to meet the standards for the Army APFT * 12 January 1995 - received a company grade Article 15 for leaving appointed place of duty * 28 February 1995 - failed to meet the standards for the Army APFT b. 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. 13. On 3 April 1995, the applicant acknowledged he was advised by his consulting counsel of the basis for the contemplated action to separate him for pattern of misconduct under AR 635-200, chapter 14-12b, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. He understood since he had less than 6 years of total active and Reserve military service at the time of separation and was being considered for separation, he was not entitled to have his case heard by an administrative separation board. a. He elected not to submit statements on his own behalf. b. 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. 14. On an unknown date, the applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 14-12b. 15. On 10 April 1995, the applicant's intermediate commander recommended approval of the discharge under the provisions of AR 635-200, chapter 14-12b, and recommended his term of service be characterized as general. 16. On 21 April 1995 the separation authority approved the recommended discharge, under the provisions of AR 635-200, chapter 14-12b, and directed the applicant be issued a general discharge certificate. 17. The applicant was discharged on 28 April 1995 under the provisions of AR 635- 200, paragraph 14-12b, in the rank/grade of PFC/E-3, and his service was characterized as under honorable conditions (general). His DD Form 214 show his Separation Code as JKA and a Reentry Code of 3. He completed 1 year, 1 month, and 7 days of active service with zero lost time. Additionally, his DD Form 214 does not list any personal decorations or awards. 18. The applicant's request contained a copy of his resume which includes his employment history while working in law enforcement, training and education, and the certifications and clearances he obtained. The full three-page resume is available for the Board to view in the supporting documents file. 19. Discharges under the provisions of AR 635-200, chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 20. 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. 21. The applicant provided argument or evidence that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 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 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 due to a pattern of misconduct following a series of misconduct that included multiple NJPs and/or failure to attend a PT formation, follow instructions, meet the standards for the Army APFT, leaving appointed place of duty, and failing to meet the standards for the Army APFT. He received a general discharge. The Board noted that the applicant provided no evidence of post-service achievements or letters of reference in support of an upgrade. However, the Board also noted that his misconduct was minor in nature and although he did not complete his term of enlistment, the Board determines an upgrade of his character of service, to fully honorable, without a change to the reason or separation code, is more appropriate in this case. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 for the period ending 6 March 2000 showing in: * item 24 (Characterization of Service): Honorable * item 25 (Separation Authority): No change * item 26 (Separation Code): No change * item 27 (Reentry Code): No change * Item 28 (Narrative Reason for Separation): No change 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. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b stated 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. b. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. c. Paragraph 14-12b states members are subject to separation for a pattern of misconduct consisting of (1) Discreditable involvement with civil or military authorities. (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 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 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, paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007375 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1