ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170013732


APPLICANT REQUESTS:  an upgrade of his general 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 he wanted out of the Army in 1986.  He did not go AWOL (absent without leave) like someone did in his unit.  He stayed and took the discrimination and abuse like a man.  Everyone that went AWOL got an honorable discharge and no action was taken against them.  He feels it has been long enough and he deserves a fully honorable discharge.

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

	a.  He enlisted in the Regular Army on 17 July 1984.  He held the military occupational specialty 11M (Fighting Vehicle Infantryman).

	b.  He received nonjudicial punishment under Article 15 for infractions on/for:

* 12 March 1986, being found drunk while on duty and fail to be at his appointed place of duty, on 14 February 1986; he was reduced to private/E-2
* 18 July 1986, failure to be at his appointed place of duty on 5 July 1986; he was reduced to private/E-2

	c.  On 25 July 1986, the applicant’s immediate commander notified him of his intent to initiate elimination action against him in accordance with chapter 13-1 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance, for public intoxication, drinking under the influence, being drunk on duty and missing.

	d.  On 22 July 1986, the applicant acknowledged receipt of the notification.  He consulted with legal counsel on 25 July 1986.  He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and elected to submit a statement on his own behalf, wherein he stated he felt he should receive an honorable discharge.  He acknowledged:

* he had been advised of the basis for the contemplated action under the provisions of chapter 13, AR 635-200 for unsatisfactory performance and its effects of the rights available to him and the effect of any action taken by him waiving his rights
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood that a general discharge under honorable conditions is the least favorable characterization of service he may receive

	e.  On 25 July 1986, the unit commander recommended separation under the provisions of chapter 13, paragraph 13-1 AR 635-200 for unsatisfactory performance.

	f.  On 29 July 1986, the separation authority approved the applicant’s discharge under the provisions of chapter 13, AR 635-200 and directed that he be issued a General, Under Honorable Conditions Discharge Certificate.

	g.  On 13 August 1986, the applicant was discharged.  His DD Form 214 ( Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 13 of AR 635-200 for unsatisfactory performance with an under honorable conditions characterization of service.  He completed 2 years, and 27 days of active service.  It also shows he was awarded or authorized:

* Army Achievement Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

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.

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 a lack of remorse for the misconduct shown by the applicant, a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, as well as the applicant already receiving a General Discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service.

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, set forth the requirements and procedures for administrative discharge 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 provides for separation due to unsatisfactory performance when a member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that:  In the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and /or become a satisfactory Soldier.  The seriousness of the circumstances is such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale.

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 on the basis of 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.


ABCMR Record of Proceedings (cont)	 AR20170013732


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