ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20170003091 APPLICANT REQUESTS: an upgrade of his general discharge 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) 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 the discharge upgrade will improve job prospects for him. 3. A review of the applicant's service record shows: a. He enlisted in the Regular Army on 25 September 1979. b. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for: * 12 November 1982, without authority, fail to go at the time prescribed to your appointed place of duty. * 13 June 1983, failing to go at the time prescribed to his appointed place of duty * 22 July 1983, without authority, fail to go at the time prescribed to your appointed place of duty c. On 22 Dec 1983, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability/unsatisfactory performance. He cited the specific reasons as continuously 635-200 being counseled and advised by the chain of command. Rehabilitation is not the question, but discipline, drive, and attitude are not rehabilitative factors. d. On 22 December 1983, he acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation for unsuitability, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He further indicated that he understood: • he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him • he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge e. His immediate commander initiated separation action against him in accordance with chapter 13 of AR 635-200 for unsuitability (lack of discipline, apathetic attitude, and inability to remain in his assigned unit). The intermediate commander recommended approval. f. On 29 December 1983, consistent with the chain of command's recommendations the separation authority approved the applicant's separation under the provisions of chapter 13 of AR 635-200 by reason of unsatisfactory performance and directed his service be characterized as under honorable conditions (general). On 18 January 1984, the applicant was relief from active duty. g. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was relieved from active duty under the provisions of chapter 13 of AR 635-200 by reason of unsatisfactory performance, in the rank/grade of private first class/E-3, with a character of service of under honorable conditions. This form further shows: • he completed a total of 4 years, 3 months, and 19 days of active service • he was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar , and Good Conduct Medal 4. By regulation, commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 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. 1. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrades, the Board determined there is insufficient evidence to grant relief. Based upon a lack of mitigating reasons for the misconduct and a lack of the character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropropriate. 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. 6/12/2019 X CHAIRPERSON Signed by 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 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.