IN THE CASE OF: BOARD DATE: 8 August 2023 DOCKET NUMBER: AR20230000865 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge to honorable. Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Self-Authored Statement 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 not forced out. He did not quit; his dream was to serve his country a minimum of 20 years. His mother became terminally ill, and he was the only one able to care for her. He had no other choice at the time of separation. His mother was gravely ill and needed him. He is asking to have his discharge upgraded to honorable for his son who is enlisting and plans to make a career as the applicant had planned. His son has his grandfather’s honorable discharge certificate, and he is hoping now in his final years to give his son his honorable discharge. The applicant also provides a self-authored statement in which he reiterates the above and that his mother was diagnosed with ovarian cancer. He stayed by her side the entire time. He reached out to his squad leader and chaplain and there was nothing that could be done. He has since learned that there were many avenues he could have been directed to. a. Shortly after he returned home to care for his mother he spoke again with the same chaplain and began the process of his discharge from the Army. It was the saddest day, but it was one decision that was made because of the welfare of his mother. He began working at the Department of Veterans Affairs in Miami, FL. b. A year after she was in remission, he contacted his recruiter in the hopes of rejoining. As he was going through the process of reenlisting his mother had a scan and they found two new primary tumors. His dream of being a Soldier died. He became an oncology nurse. c. His mother lost her battle against cancer after a 15 year long fight. He is retired and medically disabled. He does not need the benefit packages that come with an upgrade. He wants his son to have his discharge as honorable as his grandfather’s. He regrets so much for not doing his research back then to get the help he needed with his mother. 3. The applicant enlisted in the Regular Army on 2 June 1988 for four years. His military occupational specialty was 11H (Heavy Anti-Armor Weapons Infantryman). 4. The applicant was report as absent without leave (AWOL) on 22 October 1988 and present for duty on 27 October 1988. 5. He was counseled on various occasions between 21 October and 21 November 1988 for: • without proper authority being AWOL and lack of self-discipline and motivation • unsatisfactory performance • AWOL and lack of motivation/recommended for discharge • unsatisfactory performance/behavior, nonjudicial punishment (NJP) 6. On 21 November 1988, the applicant accepted NJP under Article 15 of the Uniform Code of Military Justice (UCMJ), for without authority being AWOL, 22 to 27 October 1988 and from 1 to 15 November 1988. His punishment consisted of forfeiture of $156.00 pay, restriction, and extra duty for 14 days. 7. His Report of Mental Status Evaluation, dated 8 December 1988, shows he had the mental capacity to understand and participate in the proceedings, he was mentally responsible and met retention requirements. 8. On 21 December 1988, the applicant’s immediate commander notified him he was initiating action to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 13, for unsatisfactory performance with a characterization of service as under honorable conditions (general). The reasons for the proposed action are: It is his judgement, that the applicant will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, evident by him receiving a Company Grade Article 15 for AWOL with two specifications. 9. The applicant acknowledged receipt on the same date and was advised of the reasons for separation and of the rights available to him. He consulted with counsel and elected not to submit a statement in his own behalf. 10. The applicant's immediate commander formally requested separation under the provisions of AR 635-200, Chapter 13, for unsatisfactory performance. He further requested that counseling and rehabilitative requirements be waived. 11. The separation authority approved the recommendation for discharge on 29 December 1988 and directed that the applicant be issued a General Discharge Certificate. 12. The applicant was discharged on 11 January 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions (general), Separation Code JHJ, Reentry Code 3/3B. He completed 7 months and 10 days of net active service. He had lost time from 22 October 1988 to 27 October 1988. He was awarded or authorized the Parachutist Badge. 13. Chapter 13, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order, and morale. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 15. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board determined 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. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 was discharged from active duty due to unsatisfactory performance with a general, under honorable conditions discharge. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. However, the Board was persuaded by the unique circumstances that led to his discharge, which included his mother’s serious illness at the time and his attempts to care for his mother. Based on a preponderance of evidence, the Board determined that an honorable discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests, with no change to the reason for separation and corresponding codes. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx: xx: xx: 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 reissuing him a DD Form 214 for the period ending 11 January 1989 showing his character of service as Honorable. • Separation Authority: No Change • Separation Code: No Change • Reentry Code: No Change • Narrative Reason for Separation: No Change 8/8/2023 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. 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 is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 sets forth the basic authority for the 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. 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 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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//