ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170005468 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to under honorable conditions (general) discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 is requesting a general discharge. The Army failed to help in his situation with his spouse since she was sexually involved with the sergeant in his unit. He is asking the Board to reconsider his situation, he is having problems since his wife lost their baby 3. Review of the applicant’s service records shows; a. He enlisted in the Regular Army on 26 February 1979. He was assigned to Fort Campbell, Kentucky. b. He accepted nonjudical punishment under Article 15 on/for: * 6 February 1981, for without authority failing to go at the time prescribed to his appointed place of duty on 4 February 1981; his punishment consisted in part of reduction to private/ E-2 * 12 June 1981 for 4 incidents of stealing a government meal by eating in the mess hall using a meal card while on separate rations on 3,5,6,7 June 1981 * 20 July 1981 for without authority failing to go at the time prescribed to his appointed place of duty on 9 July 1981; his punishment consisted in part of reduction to private/E-1 c. His DA Form 2-1 (Personnel Qualification Record) shows the entry "SM (Service member) confined for 2 days at Christian County jail, Charged with third degree burglary." d. The facts and circumstances surrounding the applicant’s discharge are unavailable for board review. e. On 27 August 1981, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for unsuitability, Separation Code JMJ, under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), paragraph 13-4c (2) (Unsuitability-Apathy, defective attitude or inability to expend effort constructively), with his service characterized as under other than honorable conditions. He completed 2 years 2 months, and 2 days of active service. He had 2 days of lost time due to confinement by civil authorities. It also shows he was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge M16 Rifle * Air Assault Badge 4. By regulation (AR 635-200), chapter 13 action will be taken to separate an individual when it is clearly established that it is It is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory soldier, and he meets retention medical standards (AR 40-501) (para 13-lla). 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 libeal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the misconduct within the record, as well as the 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. 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) in effect at the times, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13 (1) (Honorable Discharge) states an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military service record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. c. Chapter 13 of this regulation provides for separation due to unsuitability when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsuitability under this regulation will be characterized as honorable or under honorable conditions. 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) AR20170005468 3 1