ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160015929 APPLICANT REQUESTS: The applicant requests his under honorable conditions (general) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of Discharge) 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 that he was living with his wife and found out one day that she was cheating on him. He felt that this messed with him emotionally and he was devastated. He further stated that he lost focus on his Army career and he received an Article 14 and restriction to the barracks. 3. On 27 June 1977, the applicant enlisted in the Army. A review of his record shows: a. He was assigned to the 7th Infantry Division 1981 to 1983, was assigned to Korea where he completed a 12 month tour and reassigned back to the 7th Infantry Division. b. The highest grade he held was specialist (SPC/E4) which he obtain in 1974, later reduced to private first class (PFC/E3) in 1981 and promoted a second time to SPC in 1982. C, His records provides 16 performance counseling’s while assigned to the 7th Infantry Division and acceptance of non-judicial punishment on four occasions: * Failure to Report for Duty at a prescribed time on: o 8 July 1981 o 18 April 1983 o 22 July 1985 o 18 November 1985 * AWOL o 10 July 1981 to 16 July 1981 o 4 March 1983 to 6 March 1983 o 26 October 1985 to 28 October 1985 4. On 12 December 1985, the applicant’s immediate commander initiated a Bar to Reenlistment against the applicant stating the applicant has shown no potential for advancement or the desire to perform as a Soldier which is evident by his numerous Article 15’s and counseling because of his inability to follow instructions. His presence in this unit is unsuitable for discipline, welfare, and morale of all. PFC Gonzalez should be denied continued service in the military. 5. On 11 February 1986, the applicant’s immediate commander notified him that he was being recommended for separation in accordance with AR 635-200, Chapter 13 for unsatisfactory performance because the applicant has shown no desire to perform his job and does not preform to standards expected of a Soldier; he has become a constant disciplinary problem. Counseling, UCMJ, retention and professional assistance have shown no effect. He advised the applicant of his available rights. 6. On 11 February 1986, the applicant acknowledged the command’s intent to discharge him for unsatisfactory performance, acknowledged his available rights and declined the opportunity to speak with legal counsel. 7. On 12 February 1986, the appropriate separation authority waived rehabilitation according to AR 635-200 Para 1-18 which states: Commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member; and approved the discharge and stated the applicant would be issued a General Discharge under Honorable Conditions certificate and he would not be assigned to the Individual Ready Reserve. 8. On 21 February 1986, he was discharged accordingly, his service was characterized as Under Honorable Conditions (General) for unsatisfactory performance. His DD 214 shows he completed 8 years, 7 months, and 2 days of total active service; and reflects he was award or authorized the * Army Good Conduct Medal (2nd Award) * Army Service Ribbon * Noncommissioned Officer Professional Development Ribbon * Overseas Service Ribbon, Hand Grenade (marksman), and Rifle M-16 (marksman). 9. On 17 June 1988, the applicant submitted a request to have his discharge changed to the Army Discharge Review Board and the board stated to the effect: After careful consideration of his military records and all other available evidence, has determined that he was properly and equitably discharge and his change in character and or reason of discharge was denied. 10. AR 635-200, Chapter 13 separates members who demonstrate or display unsatisfactory performance, as evidenced by his multiple instances of misconduct and a bar to reenlistment. 11. AR 601-280, Chapter 6 Army Reenlistment Program prescribes procedures to deny reenlistment to soldiers whose immediate separation under administrative procedures is not warranted, but whose reentry into, or service beyond ETS with, the Active Army is not in the best interest of the military service. Policies and procedures prescribed herein apply to the field commander's bars to reenlistment Soldiers may not be reenlisted without the recommendation of the unit commander. 12. His records show that his commander recommended him for bar to reenlistment for various Article 15’s and counseling because of his inability to follow instructions in the whole Soldier concept, of note, some of the counseling’s referred to occurred during a period of time when he was assigned to the 7th Infantry Division on a previous assignment. 13. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. ? 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 1-18 states that commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member b. Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, character and behavior disorder, and apathy. The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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. 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015929 2 1