ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 June 2019 DOCKET NUMBER: AR20170004258 APPLICANT REQUESTS: his general discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DA 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, his service was honorable and doesn’t understand why his discharge was under honorable conditions. While he was in the service, he received numerous citations and letters of appreciation from his commander. 3. Review of the applicant’s service records shows: a. The applicant enlisted on 5 December 1980. He served in Germany from 21 February 1981 to 21 August 1983. b. He accepted nonjudicial punishment under Article 15 on/for: * 10 February 1982, showing disloyalty to the United States * 5 March 1982, disobeying an lawful order; his punishment included reduction to E-2 * 1 September 1982, disobeying an lawful order; his punishment consisted of reduction to E-3 c. The applicant's immediate commander notified the applicant on 24 July 1983 that he intended to initiate action on him for elimination from military service under the provisions of (AR) Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), Chapter 13-2, for unsatisfactory performance. d. The applicant consulted with counsel on 26 July 1983, and acknowledged receipt of the notification. He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. e. The applicant's immediate commander formally recommended the applicant's separation under the provisions of AR 635-200, Chapter 13, by reason of unsatisfactory performance. The commander stated: (1) The applicant was a rehabilitative transfer from one platoon to another on 10 February 1982 after conviction of violation of Article 19 of the UCMJ. He was transferred again in August 1982 after repeated counseling for a multitude of disciplinary & performance problems had failed to cause him to improve. (2) The commander did not consider it feasible or appropriate to accomplish any other disposition because the applicant had displayed a complete disregard of the chain of command's attempts to help him and continues to be a disciplinary problem. The effectiveness of further rehabilitative efforts would be: ineffective due to the applicant's unwillingness to be rehabilitated. f. The separation authority approved the applicant's discharge on 28 July 1983, under the provisions of AR 635-200, paragraph 13-2, and directed the applicant be issued a General Discharge Certificate g. The applicant was discharged from the Army on 22 August 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with AR 635-200, paragraph 13-2 (a) by reason of "unsatisfactory performance." His DD Form 214 confirms his service was characterized as "Under Honorable Conditions (General)." He served 2 years, 8 months, and 18 days of creditable active military service. 5. 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. 6. 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 DOD 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 pattern of misconduct, some misconduct involving violent behavior towards others, as well as a lack of character evidence to show that the applicant has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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 Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that 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. b. Chapter 13 of that regulation provides 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. 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. 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. ABCMR Record of Proceedings (cont) AR20170004258 4 1