ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20160017133 APPLICANT REQUESTS: An upgrade of his general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Case Management Division (CMD), dated 1 November 2016 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 hurt in Fort Leonardwood, MO during basic training and in Korea and trying to get his medical benefits. He should be considered due to the release of benefits 12 days before his under honorable conditions discharge. 3. The applicant provides a letter from CMD notifying him of receipt of his application and assignment of his case number. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 26 January 1982. b. He accepted non-judicial punishment under article 15 on/for: * 10 July 1982, wrongfully have in his possession 0.8 grams, more or less of marijuana * 21 November 1983, wrongfully possess .09 grams of marijuana, a schedule 1 controlled substance, he was reduced to private/E-1 c. On what appears to be a blotter extract shows on 20 October 1983 he was charged with wrongful possession of marijuana and wrongful use of marijuana. d. DA Form 3975 (Military Police Report) shows on 11 November 1983, the applicant was arrested by Junction City police for transporting an open container of alcohol and driving with no driver’s license. On 16 November 1983, he appeared in court pled no contest and was fined $300.00 and his driver’s license was suspended for 90 days. e. An extract of DA Form 3997 (Military Police Desk Blotter) shows on 14 November 1983 the summary of complaint was assault. f. On 1 December 1983, the applicant was notified of his immediate commander’s intent to separate him under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separation-Enlisted Personnel) paragraph 14-12b for misconduct. g. On 1 December 1983, his immediate commander recommended he be separated UP of AR 635-200 paragraph 14-12b for misconduct (drug offenses). h. On 16 December 1983, he consulted with counsel and acknowledged the following: * Been advised of the basis for the contemplated action to separate him for misconduct under the provisions of AR 635-200, Chapter 14, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights * He waived consideration of his case by a board of officers * He waived personal appearance before a board of officers * Statement on his behalf was not submitted * He waived representation by counsel for representation * Understood that his willful failure to appear before the board of officers by absenting himself without leave will constitute a waiver of his rights to personal appearance before the board * Understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * Understood that he may, up until the date the discharge authority orders, directs, or approves his discharge, withdraw this waiver and request that a board of officers hear his case * Understood that he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge i. On 20 December 1983, the separation authority approved the separation action UP chapter 14 AR 635-200, and directed the applicant be issued a General Discharge Certificate. j. On 23 December 1983, the applicant was discharged accordingly for patterns of misconduct. He completed 1 year, 11 months, and 18 days of active service. His awards included Marksman Qualification Badge (M16 Rifle), Expert Qualification Badge (Hand Grenade), Army Service Ribbon, Army Achievement Medal and the Overseas Service Ribbon. k. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. On 31 October 2018, CMD requested a medical review of the applicant’s alleged medical condition(s) to ascertain if condition(s) warranted separation through medical channels. 6. On 21 May 2019, the Army Review Board Agency medical advisor rendered an advisory opinion in the applicant’s case. The advisor opined: based on the information currently available, that a referral of the applicant's record to IDES for consideration of military medical retirement is not indicated at this time. In addition, there are no medical or behavioral conditions that would support a change in the character of the applicant's discharge. 7. On 28 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a response and/or a rebuttal. He did not respond. 8. By regulation AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. 9. By regulation, AR 635-200, chapter 14 establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or pattern of misconduct. 10. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. 3. AR 635-200 (Personnel Separation-Enlisted Personnel) chapter 14 establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct. a. Paragraph 3-7a(1) states an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 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. In determining whether to grant relief based on 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017133 6 1