ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20160017229 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 a good Soldier who excelled in physical requirements. The Department of Veterans Affairs (VA), determined that he suffers from post-traumatic stress disorder (PTSD), depression, and anti-social disorder due to childhood circumstances, which he claims caused him difficulties during his enlistment. 3. A review of the applicant’s service records shows the following: a. He enlisted in to the Regular Army (RA) on 24 February 1981. He served in Germany from 7 August 1981 to 2 February 1983. b. On 20 November 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for four specifications of failure to at appointed place of duty, and one specification of dereliction of duty, by sleeping on duty. c. On 20 May 1982, the applicant appealed NJP under the provisions of Article 15 for one specification of theft. His appeal was denied and his punishment consisted in part of reduction to Private/E-1 (suspended). d. On 6 August 1982, the applicant accepted NJP under the provisions of Article 15 for one specification of drunk and disorderly. e. On 23 August 1982, a DA Form 4126 (Bar to Reenlistment Certificate) was initiated by his immediate commander. It was approved on 2 September 1982 by his chain of command. f. On 9 December 1982, the applicant accepted NJP under the provisions of Article 15 for one specification of wrongfully having in his possession 3 grams, more or less, of marijuana in hashish form. g. On 7 April 1983, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to be at appointed place of duty. h. On 29 April 1983, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel),chapter 13 (Separation for Unsatisfactory Performance) based on his * unsatisfactory performance * numerous accounts of Uniform Code of Military Justice (UCMJ), Article 15’s * continued Lack of Motivation * no potential to improve i. The applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 13. He consulted with legal counsel and acknowledged on 29 April 1983, that: * He does not waive his rights * he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge * he may be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge j. Subsequent to the applicant's acknowledgement, on 29 April 1983, the immediate commander formally initiated separation action against the applicant under the provisions of AR 635-200, chapter 13 for unsatisfactory performance. k. On 11 May 1983, the separation authority approved elimination from the service under provisions of AR 635-200, chapter 13) with a under honorable conditions (general) characterization of service. He also waived the rehabilitative transfer requirement. l. He was discharged on 16 May 1983, under the provision of AR 635-200, chapter 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 2 months and 23 days. It also shows in: * item 23 (Type of Separation), Discharge * item 24 (Character of Service), Under Honorable Conditions * item 25 (Separation Authority), Chapter 13, AR 635-200 * item 26 (Separation Code), JHJ (Unsatisfactory Performance) * item 28 (Narrative Reason for Separation), Unsatisfactory Performance 4. 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 20 May 2019, the Army Review Boards Agency medical advisor/psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. There is no indication his PTSD was exacerbated by military service. b. There is no indication in the applicant's military records that the applicant failed to meet military retention standards in accordance with (IAW) AR 40-501 (Medical Fitness Standards). c. In accordance with the 3 September 2014, Secretary of Defense Liberal Guidance Memorandum, the applicant's military medical records do not support the existence of PTSD at the time of discharge. d. The applicant's military records indicate that the applicant did meet medical retention standards IAW AR 40-501. e. The applicant's diagnosis of PTSD is not a mitigating factor in the misconduct that resulted in the applicant's discharge from the military. 6. On 31 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. By regulation, separations under the provisions of AR 635-200, chapter 13 establishes policy that Soldiers may be separated per. this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 8. 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 and the medical advisory opinion 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. He was discharged for an unsatisfactory performance and was provided an Under Honorable Conditions (General) characterization of service. The medical advisory official concluded there were no mitigating factors to his 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. 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, 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 policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. a. Chapter 13 establishes policy that Soldiers may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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. c. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017229 5 1