ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 May 2019

	DOCKET NUMBER:  AR20170000983


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States)
* 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 will be retiring in two and a half years and this would give him a couple of more years.  

3.  A review of the applicant’s service records show:

	a.  He enlisted in the Regular Army on 18 November 1980.

	b.  On 12 May 1983, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) for unsatisfactory performance (unsatisfactory conduct, defective attitudes, inability to adapt socially, and repeated marijuana abuse).

	c.  On 12 May 1983, he acknowledged receipt and on 17 May 1983 consulted with legal counsel.  He acknowledged:

* the basis for the contemplated action to accomplish his separation for unsatisfactory performance, its effects, and of the rights available to him and the effect of waiving his rights
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he elected not to submit a statement on his own behalf

   d.  On 26 May 1983, his immediate commander initiated action to separate him under the provisions of chapter 13, AR 635-200 for defective attitudes, inability to adapt, and unsatisfactory conduct due to repeated marijuana abuse.

	e.  On 27 May 1983, the separation authority approved the applicant’s discharge and issued a General Discharge Certificate.

	f.  He was discharged from active duty on 6 June 1983 with a general, under honorable conditions characterization of service.  His DD Form 214 shows he was discharged under the provisions of chapter 13 of AR 635-200.  He completed 2 years, 6 months, and 19 days of active service.  It also shows he was awarded or authorized:

* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Hand Grenade Bar
* Army Service Ribbon

4.  By regulation, a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

5.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the documentary evidence presented by the applicant and found within the military service record, the Board concluded there was insufficient evidence to show there to be an error or injustice which would warrant making a change to the record.  Additionally, the Board found that the applicant failed to submit any character evidence to show he has learned and grown from the events leading to the discharge.  For that reason, the Board recommended denying the applicant’s request for relief.


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 (Enlisted Separations – Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) 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.

	b.  Paragraph 3-7b (General Discharge) 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.  Chapter 13 of that regulation provides a member may be separate when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170000983


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