ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 20109 DOCKET NUMBER: AR20170008387 APPLICANT REQUESTS: upgrade of his general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) * Letter of Residency 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 it has been over 30 years. He provided a letter of residency from Mr. X___, a Program Manager at a facility in Maryland. Mr. X___ states the applicant entered their program on 30 November 2015, for continuation of services and compliance with the housing agreement and policies and procedures of the program. The transitional housing program is a residential program within Maryland for homeless veterans/persons with a maximum stay of 24 months. The applicant has been in compliance with all aspects of his housing plan goals, still searching for full-time employment, and has made vast improvements in his process. 3. Review of the applicant's service record shows: a. He enlisted in the Regular Army on 28 October 1982. b. He accepted nonjudicial punishment under Article 15 on/for: * 2 August 1983, failing to go at the time prescribed to his appointed place of duty and being derelict in the performance of his duties; his punishment consisted in part of reduction to E-1, Forfeiture of $125, and confinement for 7 days * 30 September 1983, willfully damaging by striking it with an axe handle a door knob; his punishment consisted of extra duty and restriction and 7 days forfeiture of pay (suspended for 6 months) c. On 20 October 1983, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance. d. On 20 October 1983, the applicant acknowledged notification of the proposed separation action and subsequently consulted with legal counsel. He acknowledged: * he had been advised of the basis for the contemplated separation action under the provisions of chapter 13 of AR 635-200 * he had been advised of the effect on future enlistments in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him * he may apply to the Army Discharge Review Board or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life e. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him under the provisions of chapter 13 of AR 635-200 due to unsatisfactory performance. He cited the applicant’s two Article 15s, his lack of motivation, and his inability to adjust to military discipline. He had displayed belligerence and disrespect towards superiors, and despite counseling, he continued to perform poorly. He was considered a liability to the unit and the Army. f. The separation authority reviewed the separation action; waived further rehabilitation requirements; approved the applicant's discharge under the provisions of AR 635-200, chapter 13; and directed that his service be characterized as under honorable conditions with issuance of a General Discharge Certificate. g. On 7 November 1983, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under honorable conditions (general) under the provisions of chapter 13 of AR 635-200, due to unsatisfactory performance. It also shows: * he completed a total of 1 years and 10 days of active military service * he was awarded or authorized the Parachute Badge, the Marksman Marksmanship Qualification Badge (M-16), and Expert Badge Hand Grenade h. On 26 February 1988, the applicant received a personal appearance date to appear before the Board on 12 April 1988. On 29 June 1988, the ADRB reviewed the applicant’s case and after careful consideration the evidence determined that the applicant was properly and equitably discharge. Accordingly the Board denied his request. 4. AR 635-200 provides 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. A general or honorable discharge was considered appropriate. 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 BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and the letter of residency were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for an unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 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 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. A general or honorable discharge was considered appropriate. b. Paragraph 3-7a provides that 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008387 4 1