ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 February 2019

	DOCKET NUMBER:  AR20160016488


APPLICANT REQUESTS:  The applicant requests to upgrade his discharge to 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 he was told by his recruiter that he could get welding experience as an Armor Specialist.  He did not understand what this military occupational specialty (MOS) actually was and it would result in him being on a tank crew.  He was bitter for not being able to do the job he thought he had enlisted for, and he felt that his recruiter misled him.  He did not see a future in driving a tank. He had a poor attitude and missed some formations.  He was going to be deployed to Germany, but instead he was discharged.  He was told that if he stayed out of trouble and maintained a job, he would be able to get the character of service changed to honorable. 

3.  On 20 October 1982, the applicant enlisted in the Regular Army.  A review of his record revealed an extensive history of indiscipline.  He was frequently counseled during the period of 28 March 1983 through 1 August 1983, for:

* Indebtedness
* disobeying lawful orders   
* missing formations 
* failing to be at his appointed place of duty 

4.  On 15 July 1983, the applicant received non-judicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty.  He elected not to appeal.

5.  On 4 August 1983, he was medically cleared for administrative separation and it was determined he had the mental capacity to understand and participate in the separation proceedings.  

6.  On 12 August 1983, the applicant received NJP for failing to go at the time prescribed to his appointed place of duty.  He elected not to appeal. 

7.  On 16 August 1983, he was barred from reenlisting.  

8.  On 19 August 1983, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  The reasons for this action were the applicant’s demonstrated inability to adjust to military service, as evidenced by disciplinary action taken under Article 15, UCMJ, numerous counseling statements and a bar to reenlistment.  The commander advised him of his available rights, to include his right to consult with counsel. 

     a.  The applicant acknowledged receipt of the separation notification memorandum.  He acknowledged he understood that, if approved, the least favorable characterization of service or description of separation he would receive as a result of this action would be a general discharge under honorable conditions.  He elected not to make any statements in his own behalf.  

     b.  His commander recommended he be eliminated from further military service.  The applicant's chain of command recommended approval of the administrative separation action and the appropriate separation authority approved the separation with a general, under honorable conditions characterization of service.       

9.  On 7 September 1983, the applicant was discharged accordingly.  He completed 10 months and 18 days of net active service.

10.  Army Regulation 635-200, chapter 13 provided for separation due to unsatisfactory performance and states an 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.  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.

11.  In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense 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 Board agreed the discharge characterization was warranted based upon 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.


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. 
     a.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment:
* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely

     b.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions.
     c.  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. 
     d.  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. 
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.


ABCMR Record of Proceedings (cont)	 AR20160016488
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