ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20170013051 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 an upgrade of his general, under honorable conditions discharge to honorable. He was convicted of adultery without evidence or admission. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 26 January 1982. b. He served in Germany from 14 July 1983 to 13 July 1985. c. On 18 February 1985, he was convicted by a summary court-martial of one specification of adultery. His sentence included confinement for 30 days and reduction to private/E-1. d. On 18 February 1985, a bar to reenlistment was initiated for several disciplinary infractions. e. On 15 March 1985, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13 for unsatisfactory performance. He also acknowledged receipt of the notification of separation action on the same day. f. On 15 March 1985, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may apply to the ADRB or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge g. On 15 March 1985, the immediate commander initiated separation action against the applicant for unsatisfactory performance. The commander indicated that this action is based upon the fact that the service member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. The ability of the member to perform duties effectively in the future including potential for advancement or leadership is unlikely. h. On 2 May 1985, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 13, AR 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance. He would be issued a General Discharge Certificate. i. On 23 May 1985, he was discharged from active duty under the provisions of Chapter 13, AR 635-200 with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 3 months, and 2 days of active service. It also shows he was awarded or authorized the Army Service Ribbon. 4. 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. 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 relief is not warranted. 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. The adultery charge was handled and he was allowed to remain in the Army; that was not his reason for separation. Based upon his derogatory performance outlined on the DA Form 4126-R within the applicant’s service record, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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 for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 13 of the regulation states 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 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) AR20170013051 3 1