IN THE CASE OF: BOARD DATE: 10 November 2020 DOCKET NUMBER: AR20200003092 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 13 February 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 19 September 1984 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 he would like his discharge upgraded because at the time (of his discharge), he had only one infraction that led to his discharge. Out of frustration, he accepted the appropriate punishment but believes he served honorably and would like to be honored as such. He would also like to be buried with full military honors. 3. The applicant enlisted in the Regular Army on 1 April 1983. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 12 December 1983, for failing to obey a lawful order, on or about 4 December 1983 * on 2 August 1984, for assaulting two fellow Soldiers, on or about 25 July 1984 5. A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 21 May 1984, reports the applicant was cited for obtaining services under false pretenses, on 13 January 1984. He was counseled on the proper procedure for utilizing the train system in Europe. 6. The applicant was afforded a mental status evaluation on 21 August 1984, which found no abnormalities and cleared him to participate in any administrative proceedings. 7. The applicant's immediate commander notified the applicant, on 27 August 1984, of his recommendation to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2, for unsatisfactory performance based on: his receipt of punishment under Article 15, UCMJ on three occasions; his lack of intention or desire to perform present or future duties effectively; and his inability to display any potential for military advancement. 8. The applicant consulted with legal counsel on 5 September 1984. a. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He was advised he could submit any statements he desired in his own behalf but waived this option. 9. The applicant's immediate commander formally submitted a Recommendation for Elimination, noting the applicant had 10 informal and three formal counselling sessions and had been barred from reenlistment. The commander indicated the discharge was specifically recommended for unsatisfactory performance because the applicant, in the commander's opinion, would not develop sufficiently to participate satisfactorily in further training and/or to become a satisfactory Soldier; his retention would have an adverse impact on military discipline, good order, and morale in present and future duty assignments; lacked the ability to perform present and future duties effectively, and lacked the potential for advancement and/or leadership. The commander recommended waiver of further counseling and rehabilitation requirements and recommended the applicant be separated with a general discharge. 10. The separation authority approved the applicant's request for discharge on 5 September 1984, under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance, waived the rehabilitative requirements and directed the issuance of a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 19 September 1984. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance, and his service was characterized as under honorable conditions. 12. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The applicant had limited creditable service and did not finish his initial enlistment contract, had no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Additionally, the applicant stated that there was only one incidence of misconduct, but the record reflects additional charges and numerous adverse counseling statements that the applicant failed to disclose in his statement. The Board agreed that the applicant’s discharge characterization is appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13 provides that a Soldier may be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance when in the commander's judgment: * the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the Soldier's retention will have an adverse impact on military discipline, good order, and morale * the Soldier will likely be a disruptive influence in duty assignments * the circumstances forming the basis for initiation of separation proceedings will likely continue or recur * the Soldier's ability to perform duties effectively is unlikely * the Soldier's potential for advancement or leadership is unlikely 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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// ABCMR Record of Proceedings (cont) AR20200003092 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200003092 5 ABCMR Record of Proceedings (cont) AR20200003092 4