ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 June 2019

	DOCKET NUMBER:  AR20170009117


APPLICANT REQUESTS:  an upgrade of his under honorable conditions 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 while serving in the Army he had one incident.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 6 October 1981.

	b.  On 18 July 1982, he accepted nonjudicial punishment, Article 15, for:

* being drunk while on duty.  He received a reduction to the grade of E2 (suspended), forfeiture of $100 pay per month and 14 days extra duty
* willfully disobeying a lawful order from his superior non-commissioned officer

	c.  On 4 November 1982, his immediate commander initiated a Bar to Reenlistment Certificate citing the applicant was drunk while on duty and failed to obey a lawful order.  The bar was approved on 8 February 1983.

	d.  On 28 June 1983, the applicant’s immediate commander advised him of his intent to initiate separation action against him in accordance with the provisions of 
Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), 
Chapter 13, in effect at the time, for unsuitability and unsatisfactory performance.  
The commander believed he was apathetic, immature and unable to accept responsibility.

	e.  On 5 July 1983, the applicant acknowledged receipt of the commander’s intent to separate him.  Subsequently, he consulted with legal counsel and did not submit statements on his own behalf.  He acknowledged that:

* he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws
* he can expect to encounter substantial prejudice in civilian life because of the Under Other Than Honorable Discharge

	f.  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.

	g.  The separation authority reviewed the separation action; waived further rehabilitation requirements and on 15 July 1983, approved the applicant's discharge under the provisions of AR 635-200, chapter 13; and furnished him with a General Discharge Certificate.

	h.  The applicant was discharged on 1 August 1983.  His DD Form 214 shows he was discharged for unsatisfactory performance and with an under other than honorable conditions characterization of service.  He completed 1 year, 9 months and 26 days of net active service this period.  

4.  By regulation (AR 635-200), Chapter 13 provides for separation due to unsatisfactory performance.  An honorable or under honorable conditions discharge was considered appropriate as warranted by their military service 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, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions 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.  Based upon the record, 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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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, sets forth the basic authority for the separation of enlisted personnel:

	a.  Paragraph 3-7a (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 for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 13 of this regulation provides 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.  An honorable or under honorable conditions discharge was considered appropriate as warranted by their military service 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 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.  The 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 on the basis of equity, an injustice, or clemency 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170009117


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