ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170004018 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). 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 that he signed a 3 year enlistment in September 1981 and expected to separate at the expiration of his term of service (ETS) in September 1984. When he approached his ETS date he was informed that because he spent April to June 1982 in the installation detention facility due to a court-martial which was now bad time he would have to remain in the Army for another 3 months or they could give him a general discharge with all honorable benefits. Being he was young and naïve, he took the general discharge because he wanted to go home. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 24 November 1981. b. On 9 April 1982, he was convicted of one specification of possession of a concealed weapon, one specification of theft and one specification of possession of marijuana. The court sentenced him to confinement at hard labor for 3 months and forfeiture of $350 per month for 3 months. c. Special Court-Marital Order Number 5, dated 26 May 1982, approved and ordered the sentence duly executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. The appellate rendered a decision that states that the sentence is approved and will be duly executed. The accused will a. be confined in the installation detention facility, Fort Gordon, GA, and the confinement will be served therein or elsewhere as competent authority may direct. d. He accepted nonjudicial punishment on/for: * 24 September 1982 for two counts of failure to go at the time prescribed to his appointed place of duty * 10 February 1984 for failure to be at his appointed place of duty * 27 April 1984 for failure to be at his appointed place of duty and failure to obey a lawful order ; his punishment included reduction to the rank/grade private first class (PFC)/E-3 (suspended for 90 days) * 24 July 1984, the suspension of reduction to PFC/E-3 was vacated for failure to obey a lawful order and dereliction of duty e. On 13 August 1984, the applicant’s immediate commander initiated action to separate him under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance because of numerous counseling statements and numerous records of nonjudicial punishment for failure to report to duty, disobeying orders, failure to maintain personal appearance and barracks room. f. On 21 August 1984, he was advised by counsel of the basis for the contemplated action to accomplish his separation for unsatisfactory performance, its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights. He elected not to submit statements in his own behalf. He acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he may apply to the Army Discharge Review Board or the ABCMR for upgrading if a discharge certificate was less than honorable * he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge g. Consistent with the chain of command recommendation, on 27 August 1984, the separation approval authority approved the applicant’s discharge for unsatisfactory performance. He would be furnished a General Discharge Certificate. h. The applicant was discharged on 4 September 1984 as a result of the elimination proceedings in accordance with chapter 13, AR 635-200 with an under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 6 months, and 27 days of active service with lost time from 12 April 1982 to 24 June 1982. It also shows he was awarded or authorized the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar (M-16). a. 4. By regulation, a Soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of Soldiers 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to a pattern of misconduct, some involving criminal type of conduct, as well as a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to his discharge, the Board agreed that the applicant's discharge characterization was warranted as a result of 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. 0 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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for separation of enlisted personnel: a. Paragraph 3-7a (Honorable Discharge) states that 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. b. Paragraph 3-7b (General Discharge) states that a general discharge is a separations from the Army under honorable conditions, it is issued to a member whose military records 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 Corrections 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, 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.