ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS

RECORD OF PROCEEDINGS

                  IN THE CASE OF: 

                  BOARD DATE:  7 January 2019 

                  DOCKET NUMBER:  AR20160012999

APPLICANT REQUESTS:  Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) block 28 (Narrative Reason for Separation) be corrected or deleted.

APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

* DD Form 149 (Application for Correction of Military Record)
* DA Form 1059 (Service School Academic Evaluation Report), 10 July 1981

FACTS: 

1.  The applicant did not file within the three year time frame provided in Title 10,          U.S. Code, 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 his DA Form 1059 establishes his good conduct.
 
3.  The applicant provides a DA Form 1059 covering the time period of 15 June 1981 through 10 July 1981 for completing primary noncommissioned officer course.  He was rated satisfactory in all evaluated categories and he achieved course standards.  The DA Form 1059 states how the applicant: "has accomplished course requirements through his untiring efforts, devoting to duty and professional knowledge and his standards of appearance, contributed materially to the successful accomplishment of the Primary Noncommissioned Officer Course.  I recommend for further service schools, he would make a good small unit leader."

4.  The applicant:

* entered active duty on 22 January 1979
* accepted nonjudicial punishment on a DA Form 2627 (Record of Proceedings Under Article 15) for possession of marijuana on or about 21 September 1981
* received a summary court-martial on 28 November 1981, as per Summary Court-Martial Order Number 45, for two charges of violating a lawful general regulation during the month of August 1981 for purchasing a total of $322.00 for various merchandise when authorized $240.00 and wrongfully purchasing in excess of the monthly quantity limitations on certain merchandise

5.  The applicant was notified by his commander of the intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph                13-4c.  The commander recommended separation because the applicant: “showed absolutely no desire to succeed in the US Army.  He was constantly in trouble and made no attempt to improve himself.  He was insolent, apathetic and seriously lacking in moral fiber.  He received a field grade Article 15 in October for possession of marijuana.  At his hearing before the battalion commander he became surly and insubordinate.  Within weeks he was convicted by a summary court of blackmarketing and served 30 days in confinement at hard labor.  There was no improvement in his behavior when he returned form confinement.  He was in subordinate to his superiors and became a devisive influence on his peers.  It became necessary to isolate him from his platoon to prevent further disruption of the platoon’s activities.  He was presently a second court martial for intent to blackmarket.  He is not fit to wear the uniform of a soldier in the US Army.  He has been given more than his share of opportunities to improve and has failed miserably.”   

6.  The applicant consulted with counsel regarding the separation and acknowledged that he understood he may encounter prejudice in civilian life if a general, under honorable conditions discharge was issued.  

7.  The separation authority directed the applicant be discharged from the Army under the provisions of chapter 13, Army Regulation 635-200 on 5 April 1982.  He further directed the applicant received an Under Honorable Conditions discharge.  The applicant was discharged effective 14 April 1982.  He received an Under Honorable Conditions discharge under the provisions of Army Regulation 635-200, paragraph                 13-4c, unsuitability-apathy, defective attitude or inability to expend effort constructively.

8.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  Block 28 of the DD Form 214 lists the reason for which the applicant was separated based on regulatory or statutory authority.
9.  The Board should consider the applicant's petition, supporting document, and his service record, in accordance with guidance from the Under Secretary of Defense for Personnel and Readiness (25 July 2018) to the BCM/NRs regarding equity, injustice, or clemency determinations.









BOARD DISCUSSION:

After reviewing the application and all supporting evidence, the Board found that relief was not warranted.  Based upon the circumstances surrounding the discharge, the Board determined that the case does not show any evidence of an injustice or need for correction.  In the Board’s opinion, the narrative reason depicted on the applicant’s   DD214 accurately depicts the reason for separation; therefore, the board recommended denying the applicant’s request.

BOARD VOTE:

Member 1	Member 2	Member 3
:	      :	      :	Full Grant 
:	      :	      :	Partial Grant 
:	      :	      :	Formal Hearing Grant 
:X	X      :	X      :	Deny

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.


													___________X________________
													Chairperson


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 Army Board for Correction of Military Records (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 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  This regulation identified the DD Form 214 as a synopsis of the Soldier's most recent period of continuous active duty, providing a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In block 28, enter the reason for separation based on the regulatory or statutory authority.
3.  Army Regulation 635-200 (Personnel Separations) Chapter 13, paragraph 13-4c (Apathy [lack of appropriate interest], defective attitudes, and inability to expend effort constructively), in effect at the time, provides while lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects, or mental, or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, members considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or non-disabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 635-40 and related regulations is no bar to discharge for unsuitability.  

4.  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.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  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.  



ABCMR Record of Proceedings (cont)		AR20160012999

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