IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20210006366 APPLICANT REQUESTS: The applicant requests an upgrade of his general, under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 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, he requests an upgrade of his discharge based on receiving only two Article 15s (non-judicial punishment). 3. On 6 October 1981, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded his military occupational specialty. On or about 25 March 1982, he was assigned to his unit at Fort Polk, LA. 4. His record contained multiple counseling statements that show he was counseled for: * missing formations on multiple occasions * being dropped from the Army Basic Skills Education Program (BSEP) for making no progress, having no motivation, and no self-discipline * substandard duty performance * failing to be at his appointed place of duty on multiple occasions * the possibility of disciplinary action under the Uniform Code of Military Justice and/or elimination under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 5. On 3 February 1983, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty. His punishment consisted of 14 days' restriction and 14 days' extra duty. He did not appeal. 6. On 8 July 1983, he received NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty. His punishment consisted of 14 days' extra duty, 14 days' restriction, forfeiture of pay, and reduction to pay grade E-2. The applicant did not appeal. 7. On 18 July 1983, the applicant was notified by his commander of his intention to initiate action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsatisfactory performance. The commander cited the reason for the recommendation was based on the applicant’s substandard duty performance. He had received several counseling statements and NJP on two separate occasions. The applicant was not meeting the Army standards. The commander informed the applicant of his rights. a. Counsel advised the applicant of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. b. The applicant indicated he had submitted statements in his own behalf, however, they are not available. c. The applicant’s commander formally recommended him for Chapter 13 separation action and stated, in pertinent part, he did not consider it feasible or appropriate to effect other disposition in this case because the applicant did not possess self-discipline or self-motivation to become a quality Soldier. He had to be consistently supervised and was habitually late for formation and details. The applicant had been counseled on several occasions with only short term results. d. On 20 July 1983, the applicant was psychiatrically cleared for administrative action deemed appropriate by his chain of command. e. On 4 August 1983, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 13, for unsatisfactory performance and directed he be issued a General Discharge Certificate. The requirements for further counseling and rehabilitative efforts were waived. 8. On 16 August 1983, the applicant was discharged accordingly. The DD Form 214 he signed for shows he was discharged under honorable conditions in accordance with Chapter 13, AR 635-200, for unsatisfactory performance. He had completed 1 year, 10 months, and 11 days of net active service. 9. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation 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. 10. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and unsatisfactory performance, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and 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 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 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 Army Board for Correction of Military Records (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 (Personnel Separations – Enlisted Personnel) sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation 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. 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. a. 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. b. 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. 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) AR20210006366 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006366 5 ABCMR Record of Proceedings (cont) AR20210006366 4